If a person dies without a valid Will, they are deemed to have died intestate. In those circumstances, a list of beneficiaries of the estate will be determined by the statutory scheme of intestacy in each State.
In all Australian jurisdictions, it is possible to contest the distribution of intestacy through a family provision claim, like you would if you have been excluded or inadequately provided for under a Will.
In Victoria, the Administration and Probate and Other Acts Amendment (Succession and Related matters) Act 2017 came into effect on 1 November 2017. The new legislation applies to deaths which occurred from 1 November 2017 onwards. For deaths prior to 1 November 2017, a different intestacy statutory scheme will apply. Please contact us for more information.
Victoria
As it currently stands, if you die without a valid Will, your Estate will be distributed in accordance with the intestacy statutory scheme as detailed below. If the Deceased is…
Survived by one *partner and no children
Surviving partner receives the entire estate
Survived by one *partner and child/ren
If the child/ren are that of the deceased and the surviving partner then the partner receives the entire estate. Mutual children will not benefit from the estate.
If the child/ren are that of the deceased alone and not the surviving partner, then the partner receives:
a) The personal chattels of the deceased
b) If the estate is more than the statutory legacy^, then $451,909 plus interest from the date of death until payment of the legacy and 50% of the balance of the rest of the estate
The child/ren will then receive the other 50% of the estate and if more than one child, equally between them.
Survived by more than one *partner and no children
If the deceased leaves no children but has more than one partner (i.e. a spouse and a registered caring partner) then the partners will receive the entire estate as follows:
a) If there is a distribution agreement then in accordance with that agreement;
b) If there is a distribution order, then in accordance with that order; OR
c) Failing an agreement then in equal shares between them.
For more information about a distribution order or distribution agreement, contact one of our experts to discuss further.
Survived by more than one *partner and child/ren
- The partners will receive the chattels and the statutory legacy^ of $451,909 in accordance with:a) any distribution agreement between them;b) any distribution order made by the Court; ORc) failing any agreement then in equal shares between them.
- The partners will also equally receive 50% of the balance of the estate
- If there are child/ren that are of the deceased alone, then the child/ren will receive the remaining 50% of the estate in equal shares
Survived by no *partner
If the deceased died without a partner then the estate will be distributed to any surviving child/ren of the deceased, and if more than one, in equal shares.
If the deceased child/ren predeceased him or her then that child’s child/ren will receive their share (i.e. the grandchild who survived their parent will receive the share to which his/her parent was entitled) and if more than one, in equal shares between them.
Survived by no *partner and no children
If the deceased died without a partner or children then the estate will be distributed in accordance with the following hierarchy:
- No surviving child: equal shares to the child/ren of that deceased child (i.e. deceased’s grandchild/ren) in equal shares
- No surviving grandchild: equal shares to the surviving parents of the deceased
- No surviving parents: equal shares to the surviving siblings of the deceased. If a sibling has predeceased leaving child/ren then the child/ren (niece or nephew) will take their parents’ share
- No surviving siblings: equal shares to the surviving grandparents of the deceased
- No surviving grandparents: equal shares to surviving aunt/uncle. If an aunt/uncle has predeceased leaving child/ren then the child/ren (first cousin) will take their parents’ share
- No surviving relatives: the estate will be left to the Crown
*Partner means: Spouse, Domestic partner or Registered caring partner at the time of death
^Statutory legacy is currently $451,909 which changes each July and is published in the Government Gazette.
A person must now survive the deceased by 30 days to be considered a beneficiary of the intestate estate.
Dying without a valid Will may mean that your assets will not be distributed in accordance with your wishes. As seen from above, it may even pass to those whom you have little or no contact with if your immediate next of kin have predeceased you.
It is therefore important to ensure your true wishes are reflected in your last Will and testament. Leaving behind a well-constructed Will can also ensure that your estate is distributed in a timely and efficient manner.
New South Wales
In New South Wales, if you die without a valid Will, your Estate will be distributed in accordance with the intestacy statutory scheme as detailed below. If the Deceased is…
Survived by a Spouse or Defacto and No Children
Spouse or defacto receives the entire estate.
Survived by Spouse and Child of Spouse
Spouse receives the entire estate.
Survived by Spouse/s and Child of Another Relationship
Spouse/s receive:
- $350,000
- The deceased’s chattels
- 50% of the remainder of the estate
Child/ren receive:
- 50% of the remainder of the estate
Survived by multiple Spouse(s)
Spouse/s receive:
- Unless a written agreement or Court Order is made directing the spouses to a proposed agreement, then the estate will be equally divided between them.
Survived by Child/ren only
Child/ren receive entire estate equally. If child is deceased then their child/ren will receive their parent’s share.
- No surviving Spouse/s or Child/ren
- No surviving spouse/s or child/ren: equal shares to the parent/s of the deceased
- No surviving parents: equal shares to the siblings of the deceased
- No surviving siblings: equal shares to the grandparents of the deceased
- No surviving grandparents: equal shares to the aunts and uncles of the deceased
- No surviving aunts/uncles: equal shares to the first cousins of the deceased
- No surviving relatives: the estate will be left to the government
Dying without a valid Will may mean that your assets will not be distributed in accordance with your wishes. As seen from above, it may even pass to those whom you have little or no contact with if your immediate next of kin have predeceased you.
It is therefore important to ensure your true wishes are reflected in your last Will and testament. Leaving behind a well-constructed Will can also ensure that your estate is distributed in a timely and efficient manner.
Queensland
In Queensland, if you die without a valid Will, your Estate will be distributed in accordance with the intestacy statutory scheme as detailed below. If the Deceased is…
Survived by a Spouse or Defacto and No Children
Spouse or defacto receives the entire estate.
Survived by Spouse and Child of Spouse
Spouse receives the entire estate.
Survived by Spouse/s and Child of Another Relationship
Spouse/s receive:
- $350,000
- The deceased’s chattels
- 50% of the remainder of the estate
Child/ren receive:
- 50% of the remainder of the estate
Survived by Multiple Spouses
Spouse/s receive:
- Unless a written agreement or Court Order is made directing the spouses to a proposed agreement, then the estate will be equally divided between them
Survived by Child/ren Only
Child/ren receive entire estate equally. If child is deceased then their child/ren will receive their parent’s share.
- No Surviving Spouse/s or Child/ren
- No surviving spouse/s or child/ren: equal shares to the parent/s of the deceased
- No surviving parents: equal shares to the siblings of the deceased
- No surviving siblings: equal shares to the grandparents of the deceased
- No surviving grandparents: equal shares to the aunts and uncles of the deceased
- No surviving aunts/uncles: equal shares to the first cousins of the deceased
- No surviving relatives: the estate will be left to the government
Dying without a valid Will may mean that your assets will not be distributed in accordance with your wishes. As seen from above, it may even pass to those whom you have little or no contact with if your immediate next of kin have predeceased you.
It is therefore important to ensure your true wishes are reflected in your last Will and testament. Leaving behind a well-constructed Will can also ensure that your estate is distributed in a timely and efficient manner.
South Australia
In South Australia, if you die without a valid Will, your Estate will be distributed in accordance with the intestacy statutory scheme as detailed below. If the Deceased is…
Survived by Spouse or Defacto and No Children
Spouse or defacto receives the entire estate.
Survived by Spouse or Defacto and Child/ren
If the total estate is less than $100,000 the spouse or defacto receive the entire estate.
If the total estate is more than $100,000 the spouse or defacto receive:
- The personal chattels of the deceased
- $100,000 from the estate and 50% of the remaining estate
- The right to purchase the estate property
Child/ren receives:
- An equal share of the remainder of the estate
Survived by Children only
Children receive equal shares of the estate. If one of the children predecease the deceased but have children, then the children will take their parent’s share.
Survived by No Spouse / Defacto or Children
- Survived by no spouse/defacto or children: equal shares between the parent/s of the deceased
- No surviving parents: equal shares to the siblings of the deceased
- No surviving siblings: equal shares to the nephews and nieces of the deceased
- No surviving nephews/nieces: equal shares to the grandparent/s of the deceased
- No surviving grandparent/s: equal shares to the aunts and uncles of the deceased
- No surviving aunts/uncles: equal shares to the first cousins of the deceased
- No surviving relatives: Estate left to the government
Dying without a valid Will may mean that your assets will not be distributed in accordance with your wishes. As seen from above, it may even pass to those whom you have little or no contact with if your immediate next of kin have predeceased you.
It is therefore important to ensure your true wishes are reflected in your last Will and testament. Leaving behind a well-constructed Will can also ensure that your estate is distributed in a timely and efficient manner.
Western Australia
In Western Australia, if you die without a valid Will, your Estate will be distributed in accordance with the intestacy statutory scheme as detailed below. If the Deceased is…
Survived by Spouse or Defacto and No Children
Spouse or defacto receives the entire estate.
Survived by Spouse or Defacto and Child/ren
If the total estate is less than $50,000 the spouse or defacto receive the entire estate.
If the total estate is more than $50,000 the spouse or defacto receive:
- The personal chattels of the deceased
- $50,000 from the estate and 1/3 of the remaining estate
Child/ren receives:
- An equal share of the remainder of the estate
Survived by Spouse / Defacto & Either a Parent / Sibling / Siblings’ Children
If the total estate is less than $75,000 the spouse or defacto receive the entire estate.
If the total estate is more than $75,000:
- The spouse or defacto receive $75,000 plus 50% of the remainder of the estate
- The other 50% will be distributed as follows:
- If the value of the 50% share is under $6,000 and there is no surviving siblings or nieces/nephews then the parents receive it in equal shares.
- If the value of 50% share is more than $6,000, the parents will receive $6,000 plus 25% of the remainder of the estate. The other 25% will be received by the siblings of the deceased.
- Where there is no surviving parent/s, the siblings of the deceased and the nieces/nephews of the deceased will receive the remaining 50%.
Survived by Child/ren only
Child/ren receive the entire estate in equal shares.
Survived by Parent/s & One or More / Siblings or Nieces / Nephews
If the total estate is less than $6,000 the parent/s receive the estate in equal shares.
If the total estate is more than $6,000:
- The parent/s receive $6,000 and 50% of the remainder of the estate
- The other 50% will be distributed to the siblings and nieces/nephews of the deceased in equal shares
- Surviving parent/s only: equal shares to the parent/s of the deceased
- Surviving siblings and nieces/nephews only: equal shares between the siblings and nieces/nephews
- Surviving grandparents only: equal shares to the grandparent/s of the deceased
- Surviving uncles/aunts or first cousins: equal shares to the aunts/uncles and first cousins of the deceased
- No surviving relatives: the estate will be left to the government
Dying without a valid Will may mean that your assets will not be distributed in accordance with your wishes. As seen from above, it may even pass to those whom you have little or no contact with if your immediate next of kin have predeceased you.
It is therefore important to ensure your true wishes are reflected in your last Will and testament. Leaving behind a well-constructed Will can also ensure that your estate is distributed in a timely and efficient manner.
Tasmania
In Tasmania, if you die without a valid Will, your Estate will be distributed in accordance with the intestacy statutory scheme as detailed below. If the Deceased is…
Survived by a Spouse or Defacto and No Children
Spouse or defacto receives the entire estate.
Survived by a Spouse or Defacto and Child/ren
Spouse receives:
- $50,000 plus 1/3 of the entire estate
Children receive:
- Equal shares of the remaining 2/3 of the estate
Survived by Children Only
Equal shares between the children of the deceased. If a child has passed away then their child/ren will receive their parent’s share.
No Surviving Spouse, Defacto or Children
- No surviving spouse, defacto or children: equal share to deceased’s parent/s
- No surviving parents: equal shares to the siblings of the deceased
- No surviving siblings: equal shares to the grandparents of the deceased
- No surviving grandparents: equal shares to the uncles and aunts of the deceased
- No surviving aunts/uncles: equal shares to the next of kin
- No surviving relatives: the estate will be left to the State government. The government may pay the deceased’s dependants if any can be established
Dying without a valid Will may mean that your assets will not be distributed in accordance with your wishes. As seen from above, it may even pass to those whom you have little or no contact with if your immediate next of kin have predeceased you.
It is therefore important to ensure your true wishes are reflected in your last Will and testament. Leaving behind a well-constructed Will can also ensure that your estate is distributed in a timely and efficient manner.