Contrary to what most people believe, if someone dies without a will (known as dying intestate), their estate does not go to the government. Instead, their estate is distributed amongst family members according to the Administration Act 1969.
The Administration Act also applies if a will has been made, but it isn’t valid. To have a valid will, specific criteria must be met; for example, the will is invalid if the will-maker didn’t have mental capacity when the will was signed. For more on what an invalid will is and how to validate an invalid will, click here.
How the assets are distributed depends on the circumstances of the person who has died. For instance, did they have children, parents, a partner?
As you might expect, the Administration Act prioritises certain family members over others. Broadly speaking, partners[1] and children are treated as having the strongest entitlement, then the deceased’s parents, then siblings, then grandparents, and finally aunts and uncles.
The table below illustrates how this works using as a practical example an estate worth $500,000.
A partner
but no children
or no parents
The partner will receive the personal chattels and the whole estate of $500,000
A partner and children
The partner will receive personal chattels and $270,000.
The children will receive $230,000. If there is more than one child this is shared equally between them.
A partner but no children and one or both parents
The partner will receive the personal chattels and $385,000.
The parent will receive $115,000. If there are two parents, this is shared equally, so $57,500 each.
Children and no partner
All of the estate goes to the children
Children receive everything – $500,000 shared equally
No partner, no children, but one or both parents
All of the estate goes to the parents
Parents receive everything $500,000 – if two surviving parents they will receive $250,000 each
No partner, no children, no parents, but one or more siblings (full or half)
All of the estate goes to the siblings to share equally.
The siblings will receive $500,000 shared equally
No partner, no children, no parents, but grandparents or uncles or aunts
The estate will be split into two
as to half (mother’s side):
as to the other half (father’s side):
Example 1. If there are two grandparents on the mother’s side and one aunt on the father’s side then:
The grandparents share in $250,000 ($125,000 each) and the aunt gets $250,000
Example 2. if there are no grandparents or aunts or uncles on the mother’s side, but two grandparents on the father’s side then:
The grandparents share $500,000 ($250,000 each)
Where the person leaves behind none of the above people
All of the estate goes to the Crown
This is the only situation where the estate goes to the Crown.
Yes, there are always some exceptions:
When someone dies, you cannot simply take possession of their assets and distribute them. There is a legal process that must be followed.
In most situations, the estate can be distributed (unless it is a small estate[3]), someone needs to apply to the Court for letters of administration. Letters of administration allow a person to take control of the assets of the estate and then distribute them. This person is known as the administrator.
Typically, a family member will be the administrator. However, there is an order of priority:
This can get complicated where there is a dispute between family members or where the partner wishes to make a relationship property claim.
Just like when someone leaves a will, partners can choose to claim under the Property (Relationships) Act, where they will receive half of the relationship property, or they can choose to accept what they are entitled to under the Administration Act.
Where partners decide to make a relationship property claim, generally speaking they cannot be the administrator of the estate. After they receive their portion of the relationship property, they will not receive anything further under the Administration Act but can elect to ‘top up’ their claims with claims under the Family Protection Act (see below). The remainder of the estate will be distributed as if the partner did not exist.
Which option is best for the partner will depend on several issues, such as:
To see more on relationship property after death, click here.
Yes, the Family Protection Act can still be used where a person dies without a will.
The Family Protection Act allows the Court to depart from the Administration Act (and where there is a will, the terms of that will) so that the estate provides for the “proper maintenance and support” of eligible family members who have made claims against the estate.
What this means is that certain people (like partners, children, stepchildren, grandchildren) can make a claim against the estate, which might result in them receiving more than what they would have purely under the Administration Act.
For example, if the deceased left behind children, a partner and parents, only the children and partner would receive anything under the Administration Act. If the parents were being financially looked after by the deceased, they could make a claim under the Family Protection Act despite not being provided for under the Administration Act.
To learn more about Family Protection Act claims, click here.
[1] I use this term to describe a spouse, civil union partner or de facto partner.
[2] Personal chattels = all vehicles, boats, and aircraft and their accessories, garden effects, horses, stable furniture and effects, domestic animals, plate, plated articles, linen, china, glass, books, pictures, prints, furniture, jewellery, articles of household or personal use or ornament, musical and scientific instruments and apparatus, wines, liquors, and consumable stores
[3] A small estate is an estate worth less than $15,000.
