What happens if you die without a will in Australia?

When a loved one passes away, you want to remember their life positively and hold on to some of the memories that made your relationship with them so special. Sometimes, however, mourning and celebrating a person’s life is cut short or postponed when you have to deal with legal disputes about their estate.

Without a will in place for your loved one, their estate and possessions could get tied up in a legal battle between beneficiaries. Many people die without a will, but what happens if this is true for a member of your family?

Why writing a will is necessary

Passing away without a will is not uncommon, but it does cause incredible challenges for family and friends. Legally, dying without a will is called intestate and can mean that a person’s assets are dealt with by the government in a long process of the family hierarchy deciphering. Broadly, the estate may end up in the hands of people whom the deceased never intended, and those who they did want to provide for could be left with nothing.

Scenarios that could result in death without a current will is that the estate goes to the beneficiaries outlined in estate planning documents from a previous marriage. Even if a person dies while they are getting a divorce from their current spouse, the assets outlined in their most recent will could go to their divorcee.

Similarly, if both spouses die without a will and they were not yet legally divorced, the court will need to determine whether or not they were still considered partners to distribute assets. Any children within the marriage — blood-related or not — will also benefit from the estate, regardless of their relationship with the deceased.

In addition, if a loved one had an untimely death and left young children behind, a will would have outlined who should be named guardian. The assets that were meant to benefit the surviving child or children could also be up to debate if there is no will. This is because these assets were not part of a trust, life insurance, will or other beneficiary designation.

Writing a will is important because the deceased should have a say in where their assets go after they pass away. If there is no will, it is up to the government to determine who should receive the estate.

Who deals with the expenses and debts if there is no will?

Regardless of if there is a will or not, debtors get repaid first after a person passes away. This includes taxes, debts to financial institutions or lenders, outstanding legal expenses, administration and funeral costs.

State-specific processes if there is no will

Some specific steps, like determining family hierarchy for the deceased’s estate, differ from state to state. Being aware of these laws can organise you for contesting a will or preparing a family provision claim.

Before getting into the details, it’s important to acknowledge that a spouse in all states includes both hetero- and homo-sexual relationships, de facto spouses and domestic partners. Children include blood-related, children born outside of marriage and legally adopted children as well.

Distribution of an estate in Victoria

The deceased’s family will need to apply for a Grant of Letters of Administration with the Supreme Court for access and legal permission to manage the estate.

The most recent spouse of the deceased will receive most of the estate, and if the assets add up to more than $500,000 after all debts are paid, then the children will receive equal portions thereafter. If there was no partner or no living spouse, then the children would split the estate equally.

If the deceased had no children and no spouse, then the estate is given to family members in this order:

1. Parents.
2. Siblings.
3. Grandparents.
4. Aunts and uncles.
5. Cousins.

In Victoria, the government only gets involved if there are no living relatives.

Distribution of an estate in New South Wales

The NSW courts will accept a Letters of Administration application from someone or a group of people with the greatest entitlement to the estate such as a spouse or children for estate distribution. The current or most recent spouse is entitled to most or all of the estate if there are no children.

If there are children from the marriage and those from a previous marriage then the current spouse is entitled to:

• All personal property.
• Up to $482,000 — known as the deceased’s statutory legacy.
• Half of anything else left of the estate.

If the estate does not amount to the statutory legacy, then the spouse is entitled to the entire estate.

If there is no partner, then the subsequent relatives will inherit in this order:

1. Children: if their children have died, the grandchildren will inherit.
2. Parents: both parents will receive equal shares.
3. Brothers and sisters: if the siblings have died, the nieces and nephews will inherit.
4. Grandparents: both will receive equal shares.
5. First cousins: all will receive equal shares.
6. NSW government.

Distribution of an estate in Queensland

The mate is likely the first and foremost person to file for Letters of Administration if there is no will left from a deceased person in QLD. The spouse will inherit up to $150,000 plus any personal possessions and one-half of the leftover estate. Then, the rest is left to any living children.

If there is no spouse, then the estate will be distributed in the following order of the next living eligible relative:

1. Children.
2. Brothers and sisters.
3. Nieces and nephews.
4. Grandparents.
5. Aunts and uncles.
6. Cousins.
7. QLD government.

Step-parents and in-laws are not considered next of kin for the estate.

Distribution of an estate in South Australia

In South Australia, you can choose who will administer the deceased’s estate by choosing a public trustee or someone in your family. This person will be wholly responsible for not only distributing the estate but also paying off debts and administration costs. The public trustee will need to file Letters of Administration.

The spouse will inherit all of the assets if there were no children within the marriage. If the estate is less than $100,000, then the spouse will receive the entire estate. In cases where the estate amounts to more than $100,000 after debts are paid, then the spouse is entitled to:

• Personal property.
• $100,000 and half the remaining balance.
• The right to purchase the family home if it was in the sole name of the deceased.

The children are entitled to half of the balanced estate; if they are under the age of 18, the funds will be put into a trust by the public trustee.

If there are no children and no spouse, then the inheritance order will go as follows:

• Equal shares to the parents.
• Equal shares to the siblings.
• Equal shares to the nieces and nephews.
• Equal shares to the grandparents.
• Equal shares to the cousins.
• Estate left to the government.

Working with a Gerard Malouf & Partners lawyer

The lawyers at Gerard Malouf & Partners have the experience and a history of success in family provision claims. We can walk you through how to become a public trustee or ensure that you receive part of the estate in the case of your loved one passing away with no will. Contact us today for a no-obligation consultation.