When you have a valid will, you give yourself the best chance of ensuring your assets go where you want them to. But when you die without leaving a will, the rules of intestacy apply.
Intestacy occurs when you die without leaving a will. It means you have died intestate. But it doesn’t just happen when you’ve died without leaving a will. It can also occur in the following scenarios:
The law of intestate provides a guide to determine who receives the assets of your estate. Across Australia, each state and territory have different ways of deciding who the ‘Next of Kin’ is and what portion of the estate they will inherit.
Your estate includes all property left over after the funeral costs, administration expenses, tax, and any secured or unsecured debts are closed.
The rules of intestacy state that a deceased person’s spouse or children can receive a portion of the estate and that if there’s no children or spouse, the state will consider their next closest living relatives.
If a person dies intestate, their spouse is entitled to the whole of the estate. A spouse can include a husband, wife, de facto partner, or civil partner, including same-sex marriage.
When determining the viability of a de facto relationship, the law considers several factors, including the length of the relationship (must be together a minimum of 2 years) and the nature of the living arrangements.
When someone dies without leaving a will, there’s no named executor to handle the estate. In this case, the rules of intestacy suggest that the ‘Next of Kin’ (e.g. spouse or de facto spouse) would need to apply for a letter of administration to be named the estate’s executor.
Letters of administration is a court order that allows the executor appointed by the court to distribute the estate’s assets.
The order of administration of an estate is based on the relationship to the deceased person. Their loved ones are administered their estate in the following order:
The deceased person’s estate will only go to the state or government as unclaimed property when there is no surviving next of kin.
The best way to avoid dying intestate is to ensure that you’ve created a valid will that properly deals with all of your assets. It’s also best to include a named executor who can handle your will’s responsibility when you pass.
For more helpful reading, check out this post here:
Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.