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What Happens if I Die Without a Will? Understanding Intestate Estates and Public Trustees

What Happens if I Die Without a Will? Understanding Intestate Estates and Public Trustees

To understand intestate estates and public trustees, we must first grasp what happens when someone passes away without leaving a will. When a person dies intestate, meaning without a will, their estate is distributed according to the laws of intestacy, which vary by jurisdiction. In such cases, a public trustee may step in to manage the deceased’s estate, ensuring that assets are distributed appropriately, debts are settled, and any remaining funds are allocated to heirs or beneficiaries as determined by law. Public trustees serve as impartial administrators, overseeing the estate in the absence of a designated executor or administrator.

Here at Legally Yours our lawyer members know that dying without a will can lead to uncertainties and complications in the distribution of someone’s assets and the management of their estate. It is always recommended to create a will to ensure that someone’s wishes are carried out and their loved ones are provided for in accordance with one’s preferences. 

If I die without a will, who will be the administrator of my estate? 

When an individual passes away without a will, they are considered “intestate,” and the fate of their estate is determined by the laws of intestacy in the State or Territory where the deceased resided before their death.

The first issue that arises when a person passes away without a Will is the question of who will be responsible for the Administration of the Estate. Ordinarily, a person who creates a Will nominates a person or persons to execute their wishes. This person is responsible for calling in all the assets, where appropriate selling assets, and making distributions under the deceased’s wishes. If no executor or administrator has been nominated, then the legislation in the State or Territory will dictate who has the right to apply for a grant of letters of administration.

The second, and often the biggest issue, is the deceased has left no intentions as to the distribution of their estate. The result is that the estate will be distributed according to the legislation in their State or Territory.

These laws provide guidelines for the distribution of assets, primarily to the closest living relatives, but the specifics can vary from state to state and are highly dependent on the individual circumstances of the deceased.

 In Victoria for example, if the deceased leaves behind a partner and children from that partnership, the entire estate is awarded to the partner. However, if the deceased had children from a prior relationship, and was re-partnered at the time of their death, the distribution will depend on the value of the estate.  Furthermore, different rules apply if there are multiple surviving partners.

On the other hand, in Queensland, if a surviving partner and children exist, the spouse is entitled to the first $150,000 of the estate, along with household possessions, and a portion of the residuary estate based on the number of surviving children. The remainder is distributed to the intestate’s children, following a separate set of rules as outlined in legislation.

While the differences in distribution rules may appear minor at first glance, they can result in significantly different, and often unexpected, outcomes.

 This can lead to disputes among remaining family members, particularly between spouses and adult children and between siblings. Not only does this cause conflict and distress for remaining family members, but it often results in assets of the estate being wasted on resolution of disputes, rather than being distributed to beneficiaries.

If I die without a will, how will my estate be distributed? 

In the absence of a will, the estate’s distribution is dictated by the intestacy laws of the deceased’s State or Territory. However, a crucial point to note is that if the intestate owns the immovable property (real estate), the laws of intestacy of the jurisdiction in which the immovable property is located apply to the distribution of that property, regardless of the jurisdiction of the intestate’s domicile (the jurisdiction that the intestate lived in and treated as their permanent home). 

The intestacy legislation for each state and territory is identified below.

ACT: Administration and Probate Act 1929

NSW: Succession Act 2006

NT: Administration and Probate Act 1969

QLD: Succession Act 1981

SA: Administration and Probate Act 1919

TAS: Intestacy Act 2010

VIC: Administration and Probate Act 1958

WA: Administration Act 1903

 As identified above, the application of the relevant intestacy legislation can sometimes have surprising and undesirable consequences.  

If I die without a will, does it cost more to administer my estate?

Administering an estate without a will can prove more expensive, especially when disputes arise among potential administrators. It is essential for those involved to make a valid application for a grant of letters of administration. It is essential for those involved to make a valid application for a grant of letters of administration. These disputes may revolve around questions such as who has the right to apply for a grant of administration, how to manage assets in the absence of specific directions from a will, or addressing disagreements among potential beneficiaries.

To ensure that your assets are distributed in line with your wishes and to streamline the estate administration process, it is highly advisable to have a valid will in place. A well-thought-out estate plan can aid in minimising legal costs and ensuring a smoother transfer of assets to your chosen beneficiaries.

We’ve created a Q&A summary to provide concise answers to the most commonly asked questions about dying without a will, offering quick and helpful information.

Q: What does it mean to die without a will?

A: When a person dies without a valid will, they are said to have died intestate, meaning their estate will be distributed according to intestacy laws.

Q: Who is entitled to a share of the estate if someone dies without a will?

A: The next of kin, such as children of the deceased, spouse, parents, siblings, aunts, uncles, and sometimes even de facto partners, may be entitled to a share of the estate.

Q: What happens if a person dies without a valid will in place?

A: In such cases, the intestate estate will need to be administered. This process involves applying for letters of administration to appoint an administrator to distribute the assets according to intestacy laws.

Q: How can someone apply for letters of administration?

A: To apply for letters of administration, one may need to seek legal advice and file an application with the Supreme Court or relevant authority in their jurisdiction.

Q: What is the role of a trustee in the intestate estate distribution process?

A: A trustee, often appointed by the court or chosen by the beneficiaries, is responsible for administering the estate, paying off debts, and distributing assets to the entitled heirs.

Q: Can a de facto partner inherit from an intestate estate?

A: In some jurisdictions, a de facto partner may be considered a legal heir and entitled to a share of the estate if the relationship meets certain criteria set by the law.

Q: Is it necessary to involve a public trustee or legal aid in cases of intestacy?

A: Depending on the complexity of the estate and the need for legal guidance, individuals may seek assistance from legal aid services, or a public trustee to navigate the intestate estate distribution process.

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This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practising lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.

This article has been composed utilising content provided by Milton Lawyers from the Legally Yours network.