Intestacy
If you die without a will, the first thing that happens is your next of kin are identified. These include your spouse or domestic partner, children, grandchildren, parents, siblings etc.
Who inherits your assets and in what proportion is then determined according to intestacy rules.
Order of distribution
In Victoria, the rules for distribution are contained in the Administration and Probate Act 1958. In summary:
(a) Spouse but no children
If you leave a spouse (or domestic partner) but no children your spouse will inherit all of your estate.
(b) Spouse and children
If your children are also the children of your spouse, then your spouse will inherit all of your estate.
If you leave children who are not children of your spouse, then the rules get more complicated. The rules specify a ‘statutory legacy’ which is currently $480,700 (indexed every year). If your estate is less than the statutory legacy, then your spouse inherits all of your estate.
If your estate is worth more however, then your spouse is entitled to:
- The first $480,700, plus interest from the date of your death until payment,
- Half of the balance, and
- your personal chattels
Your children are entitled to the remaining half in equal shares.
(c) Multiple spouses
While the intestacy rules do provide for this situation, there are many permutations of this scenario and is beyond the scope of this article. To ascertain how the estate would be distributed based on the circumstances where there are multiple spouses with or without children of those spouses, please seek legal advice.
(d) No spouse
Where no spouse is left, the distribution then follows a hierarchy as follows:
- Children, and if a child is deceased, to their children (i.e. grandchildren)
- Parents
- Siblings
- Grandparents
- Aunt and uncles, and if the aunt or uncle is deceased, then to their children (i.e. cousins)
Administration of the estate
Where there is a will, the estate is administered by an Executor. Where there is no will, the estate is administered by an Administrator. Usually, your closest relative will need to apply for Letters of Administration which will enable him or her to organise and distribute your estate. This is similar to an Executor applying for Probate.
Resources:
We can advise you on estate planning and we draft or review your will. We can also assist you if you need to apply for Probate or Letters of Administration.
