The estimated number of Australians who die without a will is staggering. Almost half of the population dies without leaving a valid will. The absence of this legal document makes it challenging to handle your estate how you would like and in a timely fashion.
Additionally, intestacy rules will also apply if the deceased left a will, but it is not legal.
What Is Intestacy?
It is known as intestacy when an individual in Australia dies without a will or a valid will document. The rules around intestacy are not universal, however. They will alter slightly in various states and territories throughout Australia, but their premise is the same.
A portion of the deceased’s estate will automatically go directly to their legal spouse or civil relationship partner upon their death.
This distribution includes:
- All of the deceased’s individually-owned property and belongings
- The first $270,000 of the total estate
- Then half of the remaining estate
However, the distribution may follow alternative rules if the deceased has living children from a previous marriage or partnership. These variances will depend on the state or territory where the deceased resided.
Next, any surviving children, grandchildren, and great-grandchildren will receive a 50% portion of the remaining estate that exceeds $270,000. But alternatively, if there is no living spouse or civil partner, their amount defaults to personal property and the first $270,000.
If there is an absence of a spouse, civil partner, or living children of generations, close relatives are then eligible to inherit the deceased’s estate. In some situations where there are no living relatives, the intestacy becomes bona vacantia.
Bona vacantia is when the estate goes over to the Crown. Once this happens, the Treasury Solicitor is the person responsible for handling the deceased’s estate and can distribute grants accordingly. Individuals can apply for a Grant of Letters of Administration if they feel they have a reasonable obligation to one.
Classifications of Legal Spouses or Civil Relationship Partners
When there is an intestacy situation, Australian law dictates the estate to the deceased’s spouse or civil relationship partner. Unfortunately, this does not apply to individuals divorced from the deceased or when the civil partnership was dissolved before their death.
In addition, common-law partners are not eligible as legal spouses to claim an estate of a deceased person without a will. However, Australian law can define common-law legal partners under these regulations:
- Relationship of two years or more at the time of death
- Have a child together
- Previously registered the partnership
In all these three situations, a common-law partner classifies as a legal spouse or civil partner and is eligible to receive a portion of the deceased’s estate.
An Estate Without a Spouse or Living Children
In some situations, there will not be a living spouse, civil partner, or children to inherit the estate. Australian law then dictates a preset distribution to the deceased’s relatives according to this order of surviving relatives:
- Parents
- Siblings
- Grandparents
- Aunts and uncles
- Cousins
Each relative category requires exhaustion before moving on to the next in line.
Unintentional Problems Left Behind Without a Will
People who die without a will unintentionally create more problems and stress for their loved ones. This legal document does more than just allocate your estate assets.
Funeral and Burial
Many individuals have an idea of what they want their end-of-life celebration to look like. However, remaining family members may not follow your wishes without a legal will.
Living Dependents
Some individuals have dependent children or adults that require specialised daily living care. If one dies without a will, these loved ones left behind may not receive the love and support they would have gotten from someone you chose as their guardian.
Asset Distribution
If an individual dies without a will, the estate is legally required to follow the state’s intestacy laws or territory for asset distribution. Although these rules can be adequate for some estates, it is not the best way, especially if the deceased has family heirlooms or precious possessions to hand down to generations.
Additional Stress
When you die without a will, you forego designating an executor. This individual has the responsibility to distribute your estate and follow your wishes. Without a legal document to assign someone, remaining family members may quarrel over this position or how to distribute all your assets after your death.
A Valid Will Leaves Nothing to Chance
There are many disadvantages when an individual dies without a will in Australia. This legal document can save your loved ones stress and heartache after you are gone and make the transition easier as they adjust to life without you. Your will can protect your loved ones and your wishes.
By spending some time and constructing a valid will, you leave nothing to chance upon your death. Although it may first seem tedious, once this document is complete, you only have to revisit it when you have a significant lifestyle change to make slight adjustments.
