How is an estate distributed if a person dies without a will?

Date: Mar 31, 2015

When a person passes away intestate, their estate will need to be managed in a certain way, and distributed according to a set formula. For individuals who haven't drafted a will, it is likely that this distribution will be used, unless there are further circumstances that affect the case.

Under the most recent revisions to the intestacy laws, a person who has passed away intestate will have their estate distributed according to a set formula which involves a number of different parties. These include the following:

  • Partners of the deceased, including either a legal spouse or a de facto partner. It is possible for individuals in this position to have multiple partners and the courts will divide an estate accordingly.
  • A person's children or other descendents like grandchildren. 

The exact distribution of the estate will depend on how many individuals fit into each of these categories. For example, if there is only one spouse of the deceased and no children then they will be entitled to receive the entire residue of the estate.

If neither of the above are present, the right to inherit under a case of intestacy will be open to a number of other groups who might be eligible. These include the parents and siblings of the deceased as well as other family members like grandparents, aunts and uncles, and cousins.

A number of individuals and groups can also apply for waiver of rights through the courts. This includes those who are dependent on the deceased and those who have a moral claim against the estate. 

Organisations the deceased was involved with, such as charitable causes, can also apply for a share of a deceased estate. In this situation, the group will need to demonstrate the deceased had a significant commitment to the organisation prior to their passing in order to be successful in this claim.

In most instances, the deceased's next of kin who are eligible for a share of the estate under the rules of intestacy will be able to apply for letters of administration. This will entitle them to distribute these assets to the beneficiaries.

In some cases, a decision of intestacy can be avoided if the deceased has drafted an informal will that cannot be admitted to probate. While the will itself is not binding, for whatever reason, it is still possible for the deceased's relatives to seek letters of administration in order to distribute the will according to the distribution contained within it.

For more on the conditions imposed by a declaration of intestacy, or to begin the process of drafting your own will, make sure to discuss this with a wills and estates lawyer.