What happens when someone dies without a Will?

Dying without a Will is known as dying intestate. The law sets out how a deceased person’s assets will be distributed if they die intestate. While the legislation dealing with intestacy differs between states, the basic order of intestacy remains the same. In the ACT, the distribution of an intestate estate is contained in the Administration and Probate Act 1929.

Intestacy can also arise where a Will is invalid, or fails to dispose of the estate properly. A Will can be wholly or partially invalid for several reasons, such as:

• the Will is not in a form the Court is prepared to recognise;
• the Willmaker did not have capacity when making the Will;
• there being no surviving beneficiaries to inherit; or
• the Willmaker married after signing their Will or divorced (in certain circumstances).

So, who inherits on intestacy?

On intestacy, primacy is given to a partner. The deceased’s partner includes a spouse, civil union partner, or a domestic partner.  If you die while separated but not divorced, your ex-spouse would still be entitled to a share in your estate.  That may well be inconsistent with your intentions.

The order of priority on intestacy in the ACT is as follows:

1. If a person dies without “issue” (a child, or other lineal descendant), or the estate is worth less than $200,000, then their partner is entitled to the whole of the estate.
2. If a person dies leaving one child (or the issue of that child), then their partner is entitled to the first $200,000, and one half of the remaining value of the estate. The remaining half will go to the child of the deceased (or will be split between that child’s issue).
3. If a person dies leaving more than one child, their partner is entitled to the first $200,000 and one third of the remaining estate. The remaining two thirds of the estate will be split between the children of the deceased.

Example:

Joe is 65 and has an estate worth $1.2 million. He dies intestate. Joe has a wife, and 3 children. One of Joe’s children died before him, leaving behind 2 children (Joe’s grandchildren). On intestacy, Joe’s wife will receive $200,000 and one third of the remaining $1 million, being approximately $333,000. The rest of the estate is split into 3 parts, one for each of his 2 surviving children, and one part to be divided between the children of the child who pre-deceased Joe. The 2 surviving children will receive one part each, or approximately $222,000. The 2 grandchildren will each receive 50% of the third part, approximately $111,000, which would have been paid to their deceased parent if their parent had survived Joe.

If the deceased did not have a partner at the time of their death, then their estate will be distributed as follows:

1. If there are issue, the estate will be split evenly between the issue.
2. If there are no issue, the estate will be distributed to the deceased’s parents.
3. If the parents have also died, it will be distributed to any surviving siblings (or their issue), then grandparents, then aunts and uncles (or their issue, being first cousins).
4. If there are no next of kin as outlined above, the ACT Government is entitled to the estate, but the situations where that occurs are rare.

Why does this matter?

There is no entitlement on intestacy for anyone who is not a family member of the deceased, such as a close friend or charity. Without a Will, there is no way to ensure that specific assets such as a property, a prized painting or a particular car pass to certain people. Dying without a Will also means that you have no say over who will oversee the process of distributing your estate, and requires the Court to appoint an administrator (generally, the next of kin).

Having a valid Will saves your loved ones the time, effort, and legal fees associated with obtaining Letters of Administration, and attending to the distribution of assets in accordance with intestacy provisions. You should ensure that your Will meets all formal requirements of the State or Territory you live in.

If you do not have a Will, or are worried about the validity of your Will, our Wills and Estates Team have the experience and skill to assist you. Please contact us if you wish to book an appointment to discuss any part of your estate planning.