Dying without a will in the ACT

If a person passes away without a valid will, or a will that does not adequately dispose of their assets, their estate will be distributed in accordance with the rules of intestacy. 

Intestacy is governed by the Administration and Probate Act 1929 (“the Act”) in the ACT. The Act determines who is eligible to inherit from the estate and the order in which assets are to be distributed. 

Who inherits an intestate estate? 

The primary beneficiaries of an intestate estate are typically the partner and children of the deceased. The Act provides for intestate estates to be distributed as follows: 

• If the value of the estate is less than $200,000, the partner of the deceased inherits the whole estate. 

• If the value of the estate is higher than $200,000, the partner is entitled to the first $200,000, plus 8% interest per annum calculated from the date of death until the date the partner is paid. 

• Any remaining balance is distributed between the partner and any children (or grandchildren) of the deceased. If there is one child, the partner receives half of the remainder and the child the other half. If there are multiple children, the partner receives one third of the remainder and the children receive equal shares of the balance. 

• If the deceased has children and no partner, the estate will be divided equally between the children.  

• If the deceased died without a partner or children, the parents of the deceased are entitled to the estate in equal shares. 

• If the deceased died without a partner, children or parents, their next of kin are entitled to the estate. Next of kin are defined as brothers and sisters, grandparents, uncles and aunts, and nieces and nephews. 

• In the event a deceased leaves behind no family, the ACT government is entitled to the estate. 

Who is considered a partner?

A partner can be a party to a marriage or to a de facto relationship. The Act defines a partner as either:

1. The spouse, civil partner or civil union partner of the intestate: or

2. An eligible partner of the intestate. 

An eligible partner is someone who was the domestic partner of the deceased at the time of their death and was either in a continuous relationship with the deceased for at least 2 years, or is the parent of a child of the deceased. 

If the deceased was separated from their partner but not yet divorced, the partner will still be entitled to inherit from the estate. As such, it is important to update your estate planning arrangements to ensure they reflect your wishes, particularly after major life events such as separation. 

It is highly recommended to seek legal advice before administering a deceased estate. If you would like to discuss your situation and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

Author: Amy Davis

There is no valid Will: what happens now?

When a loved one passes away, there are many things to organise, including the administration and distribution of their assets in accordance with their Will.  However, sometimes there is no valid Will; this may be because the deceased did not make a Will (either by choice or because they were mentally incapable of doing so), the Will does not meet the validity requirements set out in the Wills Act 1968 (ACT), the Will has been revoked, or because the deceased failed to update their Will as circumstances in their life changed such that that the gifts contained therein have lapsed or fail.  When this happens, the deceased is known as intestate, and rather than their estate being distributed in accordance with their wishes, it will be distributed in accordance with the intestacy laws set out in the Administration and Probate Act 1929 (ACT). 

The Administration and Probate Act 1929 (ACT) provides for a intestate estate to be distributed in the following manner and priority: 

1. In the event the deceased is survived only by a spouse (husband, wife, de facto partner), then the spouse will receive the entirety of the deceased’s estate;

2. If the deceased is survived by a spouse and children, then the spouse will receive the first $200,000 (or as much thereof) of the deceased’s estate plus interest at 8% and thereafter share the balance with the deceased’s children - the exact division of the balance of the estate will depend upon the number of children that survive the deceased;

3. If the deceased has no spouse, but is survived by children, then the children equally share in the deceased’s estate; 

4. If the deceased has no spouse, or children, then the estate will be paid to the following categories of people:

   1. Parents of the deceased; 

   2. Brothers and sisters of the deceased; 

   3. Grandparents of the deceased; 

   4. Aunts and uncles of the deceased; and 

   5. In the event there is no person from the above mentioned categories who survives the deceased, then the Australian Capital Territory Government will be entitled to the deceased’s estate. 

Further to the above, if the deceased’s estate comprises of a house, which the spouse of the deceased was residing in at the time of the deceased’s death, then it is possible for the spouse to elect to have the house transferred to them in or towards satisfaction of their interest in the deceased’s estate.

Distribution of an estate in accordance with the laws of intestacy may not achieve the testamentary intentions of the deceased.  For example, if it’s important that friends or charities receive a portion of a person’s estate, such is not possible following the laws of intestacy; this can only be achieved by preparing a valid Will. It is therefore important that individuals prepare a Will and review it every 2-3 years to ensure that it fulfils their intentions. 

If a person does die intestate, it will still be necessary to apply to the ACT Supreme Court for Letters of Administration; this grant will enable the administrator (who applies for and is appointed under the grant) to administer and distribute the estate. 

If you are navigating an intestate estate, or simply want to ensure your estate is distributed in a specific manner, you should obtain specialist legal advice. 

Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Peta Sutton

Distribution of a Deceased Estate: When can this occur?

As an executor of a deceased estate one of the biggest questions you might have is “when can I distribute the estate?”.  You’ve gone through the motions of obtaining the Grant of Probate and have taken steps to call in all of the assets. There is money sitting in a bank account, and you have beneficiaries enquiring of you as to when they can have access to the funds.

As tempting as it might be to wrap the process up as soon as possible, it is important that you continue to follow your obligations as an executor and take steps to act in the best interest of the estate.

Executors of a deceased estate in the ACT will need to have regard to and follow the Administration and Probate Act 1929 (ACT).

Section 64 of the Administration and Probate Act 1929 (ACT) outlines that an executor can only distribute the estate once:

1. 6 months have passed since the date of the deceased’s death; and

2. That the executor has published a Notice of Intention to Distribute the Estate (a published document that puts all creditors and interested parties on notice that the executor intends to distribute the estate in accordance with the deceased’s Will after the passing of a further specified number of days); and

3.  All debts of the estate have been paid.

You may be thinking “I already put creditors on notice when I filed my Notice of Intention to Apply for Probate”.  While that is correct, it is important to do so again before distributing the estate; a failure to do so could have significant ramifications for you as the executor.  The period of 6 months following the deceased death is seen to be a reasonable period of time for creditors to raise a debt with the estate.

Further, the Notice of Intention to Distribute will place any potential family provision claimants on notice of your intentions to distribute the estate; those potential claimants have a period of 6 months from the date the Grant of Probate was issued to challenge the Will.

In the event an executor fails to comply with section 64 of the Administration and Probate Act 1929 (ACT), there is a risk that the executor will be personally liable to repay funds into the estate in the event a creditor files a debt with the estate, or a family provision claim is made (in this regard costs will likely be incurred in responding/defending the claim regardless of whether the claim is successful).   

If you are unsure of your obligations as an executor, or what you need to do to ensure compliance with section 64 of the Administration and Probate Act 1929 (ACT), you should seek specialist legal advice from an estate lawyer.

Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Peta Sutton

Applying for Probate and Letters of Administration

Losing a loved one is an emotionally challenging experience and the responsibility of administering their estate can feel overwhelming. There are a number of financial and legal processes involved in managing a deceased person’s assets and liabilities, and this may include applying for a grant of probate or letters of administration.

What is an executor?

An executor is a person appointed by the deceased to manage their estate after they pass away. The executor is responsible for collecting assets, paying debts and distributing assets to beneficiaries in accordance with the deceased’s wishes.   

What is probate?

A grant of probate authorises an executor to manage the estate of a deceased person in accordance with their will. To apply for probate, the executor will need to gather documents relating to the estate, including the original will, death certificate, and supporting documents regarding the deceased person’s assets and liabilities.

There are a number of steps involved in applying for a grant of probate in the ACT, including:

1. Advertising your notice of intention to apply for probate with the ACT Supreme Court;

2. Executing an affidavit in support of your application detailing the deceased’s assets and liabilities; and

3. Conducting a search of the Court Registry to see whether a previous grant has been made or any caveats have been lodged.

The details required for the application will vary depending on your circumstances and the complexity of the estate. If the Court is satisfied with the application, a grant of probate will be issued and the executor will then have authority to transfer or release assets to the executor or beneficiaries.

Letters of Administration

When there is no valid will, an application may need to be made to the ACT Supreme Court for letters of administration. This is an order of the Court that authorises an ‘administrator’ to manage the deceased person’s estate. The administrator's role is similar to that of an executor, but they are bound by intestacy laws, which dictate how an estate should be distributed when someone dies without a valid will.

The process for applying for letters of administration is similar to that of probate, however beneficiaries of the estate will need to be notified of the application. The affidavit in support of the application will also require some additional information, including details of the beneficiaries of the estate.  

Navigating these legal processes can be an overwhelming task in an already difficult time. Robinson + McGuinness are able to assist you with this process and offer fixed fees for preparing an application for probate or letters of administration. If you would like to discuss your situation and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

Author: Amy Davis

When is a grant of probate needed?

Many of us know what a Will is.  We know that it is the document that tells people who the deceased chose as their executors, trustees and the beneficiaries of their estate.  But how does an executor use the Will to transfer the deceased assets to the beneficiaries?

If the deceased held assets in their sole name, including bank accounts and real estate, an executor will need to apply for a Grant of Probate from the Supreme Court of the state or Territory in which the deceased held the majority of their assets. A Grant of Probate is a Court Order that provides for an executor to call in, deal with and distribute the assets of the deceased estate in accordance with the terms of the deceased’s Will.

Without a Grant of Probate an executor is unable to deal with the deceased’s real property (including the sale of real estate), distribute funds held in the deceased’s bank accounts or sell / transfer any shares held by the deceased.

To apply for a Grant of Probate, the executor must first publish a Notice of Intention to Apply for Probate.  If you are applying for a Grant of Probate in the ACT, this notice is usually published in the Canberra Times.  An executor can then apply for a Grant of Probate 2 weeks after the notice is published, and no later than three months after it was published.

There are a number of documents that need to be prepared on behalf of the executor when applying for a Grant of Probate, including the Grant, an Application and an Affidavit.  It is important that these documents are prepared correctly.  If they are not, it is possible that the Court will requisition the documents and ask you to amend them.

When is a Grant of Probate not required?

There are some circumstances where a Grant of Probate may not be required.  These include:

- If the deceased jointly owned real estate, bank accounts or other real property with another person.  If this is the case, the right of survivorship will apply, and the assets can be transferred to the surviving person once the death certificate has issued;

- If the deceased held relatively small amounts of money with a financial institution.  All financial institutions have different rules, however many will allow the executor to call in and distribute funds of $50,000 or less without a grant of probate; and

- If the majority of the deceased’s assets were held in superannuation.  Superannuation is not automatically an estate asset and therefore a grant of probate is often not required in order for it to be dealt with.  

Most people will not have held the role of executor before. If you have been appointed as an executor you might be feeling overwhelmed and unsure where to start.   

Robinson + McGuinness Family Law is able to assist you in applying for a Grant of Probate and subsequently administering the estate.  Robinson + McGuinness Family Law offers fixed fees to prepare and file an Application for Probate.  

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

By Peta Sutton