Skip to content 
A will is a legally binding document that entails your concerns and decisions for the distribution of your assets after your death. In the event that you die without a will, it will become “dying intestate.” Hence, certain laws of intestacy will apply. At a time like this, the main concern is the distribution of assets and assigning responsibility for administering their estate. Here’s what happens if you die without a will in Australia
The crucial thing to understand is that if you die intestate, the estate distribution will rely on the State Government law’s standard formula. However, the formula will vary, even slightly, between State and Territory. Having said that, the general rule indicates that in the absence of a will, your family will distribute your assets amongst themselves. However, they may not be allocated according to your initial preference. The standard formula doesn’t consider the significance of the person in your life, nor the value you placed on the gifts or any other such emotional attachment.
Without a will, disputes and arguments are extremely common and can lead to Court. Legal costs are expensive and will usually come out of your assets. It will then reduce the amount your loved ones will receive. Hence, to avoid such unnecessary disagreements, legal battles, fees, and other concerns, it is crucial for each Australian citizen to make a will. It will further minimise the additional stress on your loved one, which will already be dealing with the pain of the death.
Note – The word “estate” covers all land, property, and assets of the deceased person.
What happens if you die without a will?
Dying without a will is dying intestate. It implies that the law will determine the distribution of your estate. The rule of intestacy follows a hierarchy of who benefits from the estate. As every family dynamic varies, there can’t be a standard distribution of assets that applies to every family. Hence, if you have no will and no beneficiaries that fit under the hierarchy, the State Government will have entitlement over your entire estate.
The formula of intestacy will differ between every Australian State and Territory, but here’s the general rule.
The person died intestate but has a spouse and children
In such cases, the entire estate will go to the spouse. It is important to know that any other relatives, family members, or friends will not receive the estate if the person leaves behind a spouse.
However, in other cases, there may be children from another relationship. In this case, they may also receive some of the estates. Nonetheless, it depends on the amount of money remaining in the estate after the spouse clears all expenses and debts. However, if a person dies intestate and leaves behind a spouse and children if the same relationship, then the spouse will receive the entire estate.
In the case the person dies intestate and leaves behind a spouse and children from a different relationship, then the spouse will receive all personal possessions and the first $451,909 of the estate. The remaining balance, if any, will be divided between the spouse and children equally.
If any of the children are under the age of 18, their guardian will be responsible for their inheritance until they turn 18. Minor children will receive their share of the inheritance once they turn 18. However, it is also important to note that the estate law doesn’t take the beneficiaries’ ability to responsibly manage the inheritance into consideration.
The person died intestate and left behind children but no spouse
In such cases, all children (from past and/or present marriages) will be legally eligible to receive the inheritance. Again, if any child is under the age of 18, they will not receive their share until they turn 18
If there are children who passed away but have children of their own, the child’s children will share the inheritance that their parent was eligible for.
The person died intestate but had no spouse or children
In such cases, the entire estate will go to any of the surviving parents. If both parents are alive, then each parent will be eligible for an equal share of the estate. If there are no surviving parents, then the hierarchy is generally in the order of
- Surviving siblings, eligible for equal shares of the estate, then
- Surviving grandparents, then
- Uncles and aunts, then
- Cousins.
Who will be in charge of the estate if you die without a will?
When a person dies intestate, an Administrator (who is usually a family member or relative) will distribute the estate according to the laws of intestacy. However, it is important to note that an Administrator or Executor will have limited powers, following the restriction of the rules of Probate in the applicable Australian State or Territory.
An Executor is typically the next of kin and will have the legal authority to carry out the wishes of the person after they die and distribute their estate. It also includes funeral planning and distribution of assets in the case that a will exists.
In the case of a will, who will have the legal authority?
In the case of a will, the Executor will locate it and use it for the next steps in the estate administration process. However, it is important they know and acknowledge their level of responsibility to execute the will and begin the administration process. However, if the will mentions the Executor, but they intend to withdraw from their Executor duties, they must write a letter of renunciation and lodge it in their local Probate Office.
In the case of multiple wills, it is crucial for the Executor to determine which will is valid.
If you die without a will, who has the legal authority?
In the case that there is no will, the senior most Next of Kin will need to take up legal responsibilities. However, it is crucial that they know and acknowledge their responsibility as an Administrator or Executor. It is their job to act in good faith and in the best interest of the deceased person. Moreover, they must establish the value of the estate and distribute it among the deceased person’s beneficiaries.
If the Administrator establishes that there is no will, they must first check if any pre-paid/pre-arranged funeral insurance plans exist. If any funeral directive or prepaid plan exists, they must contact the service provider and inform them about the death to begin the funeral preparations.
What are the duties of an Administrator?
Quite simply, the Administrator or Executor is responsible for all legal matters related to the will or laws of intestacy that may apply to the deceased person. The foremost duties of the Administrator are –
- Find out if the deceased person left a will or not
- Gain control over the estate of the deceased person
- File a list of the estate and include relevant details – such as their value
- Pay all funeral expenses, taxes, and unpaid debts of the deceased person
- Prepare a final account of the deceased person – including all payments relevant to the estate, and the distribution pattern of the estate
- Distribute the estate of the deceased person according to the law
Will the requirements differ for smaller estates?
There is no requirement for an Administrator for smaller estates. A surviving spouse or any other next of kin may take up the role and distribute the estate without the need to obtain “Letters of Administration.” However, that is possible only if –
- The value of the combined estate is small
- The estate consists of household goods only along with a small sum of money
In the case that a bank or building society holds $6000 or less of the deceased money, then the bank can use it for funeral expenses and pay the remaining balance to the surviving spouse, parent, or child. Hence, it is crucial to also check in with the deceased’s bank regarding this.
When working out the value of the combined estate, you cannot include assets in joint tenancy with the deceased and any proceeds of life insurance unless and until they were left to the estate.
If the estate is small, where the gross value doesn’t exceed $10,000, then the manager at the Probate Office may help with the application. In that case, the only necessary payments will be the Court fees for the ACT Probate Office.
Seek help from United Legal lawyers today
Moving on from a loved one’s death isn’t always easy, especially when you have the added responsibility of the distribution of their assets. While intestacy is bound to lead to family disagreements, a will can also worsen family conflicts. Distribution of estate can be tricky with family dynamics involved.
And while most of the time, such family disputes can lead to Court, it can be increasingly difficult to deal with such
complexities at the time of grief. Hence, a lawyer ensures unbiased and legal distribution of the estate while navigating the complexities of the family disputes, resulting in a peaceful and legal conclusion. At United Legal, our team of dedicated lawyers understands the delicacy of family relationships and ensures that you receive the trust and legal guidance you need at a time like this.
UNITED LEGAL
Canberra’s Best Lawyers
For our legal support services Contact us at (02) 6295 2283
Visit us at
