We all know just how important a Will is. I mean, if you’re hanging out on our website and reading through our guides, we reckon you have a pretty good idea about the importance of stipulating your wishes and dividing your assets so things can be managed smoothly after you’ve died.
However, there are times where an individual hasn’t written a Will. This can be for a range of reasons – maybe they were relatively young and didn’t think they’d need to think about their Will for a while, or maybe they just hadn’t gotten around to writing one yet when they passed away. Alternatively, the person might have a Will that is no longer valid, or their Will might’ve gotten lost. There are a range of reasons as to why a person might have died intestate, but ultimately it comes down to the absence of a legal Will after they have died.
We’ve written a few guides about intestacy (you are considered to have died ‘intestate’ if you didn’t have a Will at the time of passing), but we thought we’d take some time to specify the different laws around the topic in each Australian state. Because yep, the rules do differ depending on where you live.
If a person dies intestate in Victoria, their next of kin is required to apply to administer the estate. A ‘next of kin’ is the spouse or domestic partner of the person who has died. If there’s no spouse, the person’s children will be considered the next of kin. And if there are no children, the person’s parents will be next on the list.
In cases of intestate in Victoria, a deceased estate is typically allocated to the spouse of the individual unless they have children from a previous relationship. The spouse will then receive the legacy of $486,870 (as of 2022), as well as 50% of the remaining estate. The children will then share the remaining 50%.
New South Wales
When someone dies intestate in New South Wales, their next of kin must apply for ‘Letters of Administration’. They send this application through to the NSW Supreme Court and once approved, they’ll then be able to start dividing the estate.
Similarly to Victoria, New South Wales considers the spouse or children to be the administrators of the estate (which makes perfect sense, we think).
If the deceased had a spouse at the time of their death, and also had children from a previous relationship, the spouse will receive a legacy gift of approximately $506,000 (as of 2022) as well as 50% of the remaining estate. The other 50% will be shared amongst the children from the previous relationship.
New South Wales and Victoria might be similar in their intestate laws, but South Australia is a totally different kettle of fish.
In South Australia, a deceased person’s entire estate will be allocated to the person’s spouse if their assets total less than $100,000. If the value of their assets is larger than $100,000, the spouse will receive $100,000 as well as all of the deceased’s personal property.
Everything else within the deceased’s estate will be divided equally between the surviving children of the deceased, and the spouse.
As is the case with the above states, in Queensland, the spouse will always be the first in line to inherit a deceased estate. They’ll receive the first $150,000 of the estate, and the remaining estate will be divided between the spouse and children, equally.
That means that if there are three children and one spouse, the spouse will inherit one quarter of the estate, and the surviving children will share the remaining three quarters equally. If the deceased is not survived by a spouse, their children will share the estate equally.
Australian Capital Territory (ACT)
Good news! If your brain is starting to feel a little muddled and you’re getting confused about the differences between each state, well, the ACT is here to help you. Their laws are pretty similar to the intestate laws in New South Wales where the spouse and children of the deceased will be first in line to inherit a deceased estate.
However, a few monetary elements differ. In the ACT, a spouse will receive the entire estate if the value is less than $200,000. If the estate is valued at more than $200,000, the spouse will receive the $200,000 and the remaining estate will be divided equally between the spouse and the children (although this can vary depending on how many children the deceased had).
In the Northern Territory, you must be the deceased’s next of kin to apply for a Grant of Letters of Administration.
As is typically the case in all other states, the spouse is usually first in line to receive the deceased estate. They will inherit the entire estate if the deceased didn’t have any children. If the deceased did have children and the estate is worth less than $350,000, the spouse will still receive the entire estate. However, if the estate is worth more than $350,000, the spouse will receive the $350,000 they are entitled to, and will then share the remaining estate with the children of the deceased. The values of these shares vary depending on how many children need to be taken into consideration.
Similarly to New South Wales as well, in Western Australia, the next of kin needs to apply for a Grant of Letters of Administration.
If the deceased estate is worth less than $472,000, the spouse of the deceased will receive the entire estate. However, if the estate is worth more than $472,000, the spouse will receive the $472,000 they’re entitled to as well as a portion of the remaining estate (also known as the ‘residuary estate’). The residuary estate must be divided equally between the spouse and surviving children (or the person’s or siblings if they had no children).
The people of Tassie have similar laws to those living in the Northern Territory; the next of kin will need to apply for a Grant of Letters of Administration, and the financial threshold for decision-making is, once again, $350,000.
There is one key difference for Tasmanian residents: If the value of the estate is worth more than $350,000, the spouse of the deceased will receive all personal property of the individual as well as the first $350,000 of the estate. The remaining 50% will be divided equally among the surviving children.
Turns out, all Australian states are relatively similar. The next of kin is first in line to access a deceased estate, and anything over and above a specific monetary threshold will be shared amongst the spouse and children of the individual.
It’s important, though, to write your Will and ensure it is legally sound so that your assets are distributed according to your wishes should you die unexpectedly (or expectedly). While it’s great that Australian law stipulates who will be entitled to your estate once you pass, this doesn’t ensure that everything you wish will be fulfilled.
Because, afterall, how is anyone to know what you truly want, if you don’t tell them so?