The law on dying without a will Commonly an intestate estate will be divided up between the surviving married or de facto spouse and children. If there is no surviving immediate family, the assets may be allocated to other family members including parents, grandparents, aunts, uncles or cousins.
If there is more than one surviving spouse (e.g. a separated husband or wife and a de facto partner) each spouse is entitled to share in the estate. If there is no spouse the residue of the estate is to be divided between all children of the deceased. If there is no spouse or children the estate will go to the parents.
If you die without a Will or your Will is not valid, then an application for a Grant of Letters of Administration will need to be made to the Supreme Court. Usually, it is the deceased's next of kin who has to apply for this grant. For example, the spouse, domestic partner or a child of the deceased.
If you die without a will and do not leave any eligible relatives, your estate will pass to the State (Crown). However, the State does have the discretion to provide for any dependants of the deceased or any other person the deceased might reasonably have been expected to provide for if he or she had made a will.
In Australia, a next of kin typically refers to a person's spouse, de facto partner or closest living blood relative. The term is typically used on estate planning documents such as a Last Will & Testament.
If the deceased person was survived by a spouse and no children, the spouse is entitled to the entire estate. If the deceased person was not survived by a spouse or children, the assets will be distributed to their next of kin.
Once you notify us and provide at least one of the Proof of Death documents, then a permanent hold will be placed on any transaction accounts solely held by the deceased. This means: No money can be taken out of the accounts.
There are no inheritance or estate taxes in Australia. However, you may have tax obligations for the assets you inherit: capital gains tax may apply if you dispose of an asset inherited from a deceased estate. income tax applies as usual to any dividends or rental income from shares or property you inherited.
A nationally representative survey of 1,054 respondents revealed 60% of Australians – equivalent to 12 million people – do not have a will. That's despite a 33% uptick in people taking one out during the pandemic.
A Will can be revoked by making another valid Will. See Making a valid Will. You should state on the new document that you revoke all previous Wills.
You have no control over the distribution of your estate. The rules of intestacy may not accord with your wishes. Your spouse may be forced to sell the family home in order to pay a share to your children.
A beneficiary can contest a Will if they're an “eligible person”. Otherwise, they cannot contest a Will unless they lived with the deceased and were wholly or partly dependent on them. But they should speak with a lawyer first.
1. What does it mean to contest a Will? Contesting a Will is when valued members of the deceased's family feel they were unfairly left out of a Will or not adequately provided for. The contents of a Will can be challenged in Australia by law if there is a good reason.
Beneficiary Rights Regarding the Estate
In both New South Wales and Queensland, any person named as a beneficiary has the right to obtain a copy of the will. This is usually done by contacting the executor.
What happens to a person's bank accounts when they die in Australia? When someone dies, the executor of their estate will need to notify the bank of the passing. The bank will freeze their accounts where they were the sole account holder. This is to prevent further transactions and ensure the estate is protected.
If the account holder established someone as a beneficiary, the bank releases the funds to the named person once it learns of the account holder's death. After that, the financial institution typically closes the account. If the owner of the account didn't name a beneficiary, the process can be more complicated.
While the beneficiaries of the estate (e.g. friends or family members) are not responsible for the debt, the estate may lose the asset if the loan can't be repaid. If the deceased has a secured or unsecured debt in joint names, then everyone named on the account is responsible for the debt.
The line of inheritance begins with direct offspring, starting with their children, then their grandchildren, followed by any great-grandchildren, and so on. The legal status of stepchildren and adopted children varies by jurisdiction.
If you have a spouse and children, the spouse and the children receive half of your property each. If you have parents but no spouse, children, or siblings, your parents inherit everything. If you have siblings but no spouse, children, or parents, the siblings inherit everything.
First order of inheritance: descendants
Children inherit equal shares. Predeceased children are represented by their own descendants (inheritance by representation). No distinction is made between children born in and out of wedlock. They are all equal under inheritance law.
A de facto spouse has essentially the same inheritance rights as a married spouse under this legal formula. If the deceased had no children, everything will pass on to the de facto spouse.
What If the Surviving Spouse Isn't on the Deed? If one spouse dies and the surviving spouse is not named on the title to the house, then the property will pass through the decedent spouse's estate--either through a will or intestate succession.
Many married couples own most of their assets jointly with the right of survivorship. When one spouse dies, the surviving spouse automatically receives complete ownership of the property. This distribution cannot be changed by Will.