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of doing so), the Will does not meet the validity requirements set out in the Wills Act 1968 (ACT), the Will has been revoked, or because the deceased failed to update their Will as circumstances in their life changed such that that the gifts contained therein have lapsed or fail.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:
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;
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;
If the deceased has no spouse, but is survived by children, then the children equally share in the deceased’s estate;
If the deceased has no spouse, or children, then the estate will be paid to the following categories of people:
Parents of the deceased;
Brothers and sisters of the deceased;
Grandparents of the deceased;
Aunts and uncles of the deceased; and
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