Dying Intestate

A Will is a person’s statement of intentions for their assets after they die. Not everybody makes a Will. If a person dies without making a Will, their assets will pass according to the laws of intestacy in that state. The laws of intestacy are different in each state of Australia.

A distribution made according to the laws of intestacy may be challenged by aggrieved beneficiaries under the relevant State legislation.

If you live in a defacto relationship, there may be the need to prove your relationship through the Magistrates Court, to ensure that you are recognised as a spouse entitled to death benefits.

  Interstate and intestate

You should be aware that where you do not leave a Will, different assets of deceased estates may be governed by different State laws. These laws are not necessarily consistent. Laws from one State may apply to a particular asset even if the deceased never resided in that State.

  Superannuation and Life Insurance

You may think that you don’t have enough assets for it to be worth having your Will drafted. This is a common misconception, particularly amongst younger people.

People often forget that they may die leaving a substantial death benefit payment from their superannuation or life insurance. If they have no dependants, this will be paid to their estate. If they have no Will, their superannuation or life insurance proceeds will be distributed according to the applicable laws of intestacy.

  Grants of Probate

When you or a family member with a valid Will dies, it is important that legal advice is sought in relation to administering the estate. Though circumstances vary, most executors will need to apply to the Supreme Court for a grant of probate, so that the will may be proved valid and the assets of the estate distributed to the beneficiaries according to the terms of the Will.

  Letters of Administration

When someone dies intestate (without a valid Will), legal advice must be sought swiftly so that an administrator may be appointed to administer the estate. The State legislation details who is entitled to apply for administration and who inherits the estate.