The laws vary in different states of Australia. Find out how it works where you are.
If someone dies without a will, they have died 'intestate'. This situation is commonly referred to as 'intestacy'. When intestacy occurs, each state will usually apply:
- Steps courts need to take
- Who gets what from your estate
Note: Intestate rules also apply if a will is deemed invalid, for example because it wasn’t legally signed and witnessed.
What if my will half complete?
The assets that have not been listed or covered by the will are subject to intestacy laws.
Intestacy will result if there is no will or if there is one but it doesn’t cover all the assets. It will also occur if the will hasn’t been done properly. A will can result in intestacy because of the following reasons:
- A will hasn’t properly disposed of all assets.
- A will is invalid because it hasn’t been legally signed and witnessed or was improperly drafted.
- The deceased did not have the mental capacity to make a will at the time, may have been coerced into it or it is otherwise deemed invalid.
To avoid partial intestacy, you can either update your will regularly or add something to your will about what happens to all assets that you haven’t specifically mentioned.
Typical intestacy procedures can involve costs, such as:
- Tracking down a will which may or may not exist
- Contacting descendants
- Working out who gets what
These costs are taken out of the assets, which is one of the reasons having a proper will is so important. Your will ensures that assets go where you want them to and also means you’ll have more to give because there won’t be intestacy costs.
Procedures vary between states
Generally there are a number of other people (e.g someone who is next of kin) may apply to the state court with letter of administration. If approved, they are said to have a grant of administration.
What does a grant of administration do?
With a grant of administration, the person is now able to pay debts on behalf of the deceased and can access assets in banks, superannuation funds and elsewhere as needed.
When is a grant of administration needed?
You may need a grant of administration in these circumstances:
- Real estate is solely in the name of the deceased.
- A bank or some other financial institution refuses to release all the assets without one.
Who can apply for a grant of administration?
Anyone who is legally entitled to a share of some of the assets is able to apply for a grant of administration, although the courts must agree that they are a reasonable person to handle it.
If more than one person applies for a letter of administration, then it might be awarded either to the person who applied first or to the person with better reasons for doing so in the opinion of the courts.
You should apply for a grant of administration no more than six months after the deceased passes away, and you will need to take certain steps before making the application. It’s a good idea to consult a legal professional before applying for a letter of administration as they can help meet the requirements.
Steps to follow
Note that many of these steps will involve fees and charges.
- Conduct a thorough search for a will. You will need to take a thorough look through the deceased’s personal papers, consult the state supreme court (where wills may be lodged), consult any solicitors the deceased may have engaged, check with any banks where they held accounts and contact the state government trustee association.
- Get certificates. You will need to get a death certificate, and you may also need certification of your relationship to the deceased in order to succeed in your application.
- Lay out who is entitled to what. Your application needs to specify who is entitled to a share of the assets under intestate law. Everyone mentioned here may be entitled to apply for a letter of administration, and they can agree between themselves who should apply for a grant.
- Advertise your intention to apply and then wait. You now need to advertise your intention to apply for a grant of administration on the state registry. You will then need to wait at least two weeks. This is so other people with an interest in the estate, like creditors, other eligible relatives or someone who might know of the existence of a will, can have a chance to get involved.
- File the paperwork. Once you’ve completed all the above steps, you can file an application for a letter of administration. The things you need to include in an application and the forms to fill out may vary depending on the situation.
Applications for a letter of administration are difficult to complete effectively without legal assistance, and there will be a range of costs involved.
Each state has its own procedures for handling intestate assets and applying for a grant of administration. The predetermined formula for dividing assets varies between states.
Find out how it works in your area.