Meaning of intestacy

Intestacy is what happens when someone dies without a Will that properly disposes of their assets.

A person can also die partially intestate, meaning they may have left a Will which disposes of some assets, but not other assets. Those assets which aren’t dealt with under the Will are subject to the laws of intestacy.

How does intestacy happen?

There are many reasons and circumstances that could cause someone to die intestate (or partially intestate), including where:

  • The deceased person never made a Will.
  • The deceased person made a Will but all Executors have died or are unable to act.
  • The deceased person did make a Will, but the Will doesn’t comply with the legal requirements of a valid Will (see Informal Wills ). This often occurs where the deceased person has made a DIY Will or used a Will Kit (see Perils of DIY Wills ).
  • The deceased made a Will when they didn’t have capacity to do so (read more about testamentary capacity here).
  • There is a Will but it was forged or made under the influence of others (see Challenging a Will).

Wills and estate planning are complex areas of law. Every detail is crucial and one seemingly small mistake can have huge impacts on the validity of your Will.

Who administers my estate if I don’t have an Executor?

Executors are appointed by Will, so who looks after your estate if you don’t have a Will?

Usually your main beneficiary or your closest next-of-kin will step up to administer your estate. That person will typically need to apply to the Court for a Grant of Letters of Administration which will give authority to that person to act and administer the estate. That person is called the Administrator.

Grant of Letters of Administration

Depending on the assets of the estate (for example if there is a Refundable Accommodation Deposit from a nursing home, real estate, of large sums of money in the bank), it may be necessary for the proposed Administrator to apply to the Supreme Court for a Grant of Letters of Administration (No Will). This Grant is the Court’s confirmation that there is no Will and approval that the proposed Administrator is a suitable person to administer the estate and it gives the Administrator the legal powers required to call in and distribute the estate assets.

If the deceased person left a Will, but all of the named Executors have died or aren’t able to act, then it may be necessary to apply for a Grant of Letters of Administration (With Will). This Grant allows the Court to appoint an Administrator for the estate, but the Administrator must still comply with the rest of the deceased’s Will.

Who gets my estate if I die intestate?

The intestacy laws vary between states and territories. The laws that apply will depend on where the deceased person died and where they held assets.

In ACT and NSW, intestacy laws distribute the estate as follows, depending on the deceased’s circumstances:

ACT NSW
Survived by spouse and no children Spouse receives entire estate Spouse receives entire estate
Survived by spouse and children, estate worth under $200,000 Spouse receives entire estate

If children are children of the deceased and the spouse, spouse receives entire estate

If children are not children of the spouse, spouse receives personal effects, a statutory legacy and ½ remaining estate. Children receive remaining ½ equally
Survived by spouse and children, estate worth over $200,000

Spouse receives $200,000 (plus interest accruing from death), plus ½ remaining estate (if one child) or  1/3 remaining estate (if more than one child)

Children equally receive any remaining estate, after payment to spouse

If children are children of the deceased and the spouse, spouse receives entire estate

If children are not children of the spouse, spouse receives personal effects, a statutory legacy and ½ remaining estate. Children receive remaining ½ equally
Survived by children but no spouse Children receive entire estate equally Children receive entire estate equally

MV Law’s Wills and Estate Lawyers team can help the family of people who have died intestate. If you have a family member who has died without a Will, contact us now or complete our online form here.

Our Wills and Estates team can assist you with making a Will so you don’t die intestate. To get started, contact us now or complete our online form here.