NT intestacy laws, next of kin and estate administration
When someone dies without a will, they have died intestate. If the person has a will but it fails to dispose of all assets, then this is partial intestacy.
An intestate estate is distributed in a specific way under Northern Territory law and has a clear inheritance order as well as specific steps that need to be followed.
This guide explains the order of inheritance, and what you need to do in order to manage the estate if someone passes away without a will or if there are any intestate assets.
The order of inheritance under NT law
- The intestate. This is the person who has passed away without a will or with a will that does not dispose of all the assets.
- The estate. This is the inheritable property. In this case, it specifically refers only to intestate property. It is divided according to dollar value, so it’s possible that you might have to sell off certain assets, such as a home or car, in order to give someone their legal inheritance. Having a will can help prevent having to do this.
- Spouse. This is either a person the intestate was legally married to or a de-facto partner. A de-facto partner is someone who has been living domestically with the intestate for at least two years preceding the intestate’s death during a period when the intestate was not living with a spouse. As such, sometimes there might be more than one spouse who can inherit.
- Issue. This term refers to someone’s children, grandchildren, great-grandchildren and so on. For example, the intestate’s issue refers to all of their children, grandchildren and so on while the intestate’s brother’s issue would refer to the intestate’s nephews and nieces, great nephews, great nieces and so on.
Generally, the spouse and any children will inherit the bulk of the estate, but the exact way it’s broken down depends on how much the estate is worth and the specific situation.
To find out who inherits what, read the following list from top to bottom until you find the situation that applies to your circumstances.
Spouse only (no issue, brothers, sisters or parents)
The spouse inherits everything. If there is more than one eligible spouse or partner, then they share the entire estate.
Spouse and issue
This is generally when the intestate has left behind a spouse or partner as well as children or grandchildren. The way it’s broken up depends on the dollar value of the estate.
If the estate is worth less than $350,000, then the spouse inherits it all.
If the estate is worth more than $350,000, then the spouse inherits the first $350,000 plus
- Half the remainder when there is only one issue (only one child of the intestate)
- One third of the remainder when there are more than one issue.
Here, the issue inherit any amount that the spouse does not.
Spouse and parents or siblings, but no issue
In this case, the spouse can inherit the full amount of any estate worth up to $500,000 as well as half of any remainder over this amount.
Any other remainder goes to the intestate’s parents if they are still alive. Where necessary, such as if the intestate’s parents have separated, then the amount is divided equally among both parents.
If the parents have not survived the intestate, then any brothers and sisters can inherit the parent’s amount instead, also divided equally.
No spouse, with issue
If there is no spouse or eligible de-facto partner to inherit, then the intestate’s issue can inherit the entire amount.
No spouse, no issue, with parents
The parents are entitled to the full amount, divided equally between them if necessary.
No spouse, no issue
If the intestate is not survived by any issue, spouse or partner, then the following order applies:
- Brothers and sisters. Siblings and their issue are entitled to the estate.
- Grandparents. If there are no siblings, then the intestate’s grandparents are entitled to the estate, divided equally between them if needed.
- Aunts and uncles. If there are no siblings or grandparents, then the intestate’s aunts and uncles can inherit. If an aunt or uncle has passed away before the intestate, then their issue may also inherit at this stage.
If none of the above
Generally, if none of the above family remains, the territory may take the property.
Someone’s died intestate. What happens now?
In order to distribute intestate assets, someone will often need to be appointed as the administrator of the estate and apply for a letter of administration from the Northern Territory courts. This is also known as a grant of administration.
This is not necessary for smaller amounts. Generally, the intestate’s spouse or issue can informally administer an inheritance worth less than $20,000.
In certain situations, you will always need a grant of administration. These are where the intestate assets include the following:
- $20,000 or more in a bank.
- A superannuation fund that should be paid out towards the deceased’s estate.
- Any real estate, such as land, in the Northern Territory of which the intestate was the sole owner.
- Managed investments worth about $20,000 or more, or shares worth about $10,000 or more.
Once someone has a grant of administration from the courts then they are able to access the intestate’s assets in order to distribute them to the rightful inheritors.
The courts will generally be quite selective about who can get a letter of administration. Generally, it will only ever be given to a spouse, partner or next of kin of the deceased. If there is more than one applicant, then someone who lives in the NT will be prioritised as will someone who’s eligible for a larger share of the inheritance.
If several inheritors are applying for a grant together, then one person can be nominated the administrator with the other inheritors signing a notice of their consent to this.
A grant of administration will only ever be given to someone who isn’t an inheritor of the estate if there is no spouse or next of kin, or if there is but they are unsuitable for the position. This might be because the courts have found them untrustworthy, because they did not apply for a letter of administration when requested or because the only inheritor is an infant.
Typically, anyone who is in line to inherit can apply for a grant of administration. Most people get help from a lawyer for this, but you can also do it yourself.
How to apply for a letter of administration in the NT
The first step to applying for a letter of administration in the Northern Territory is to take out a notice in the legal notices section of a Darwin daily newspaper for a day other than Sunday. If the intestate lived more than 200km from the Darwin General Post Office at the time of death, then a notice must also be published in one of their district newspapers.
This notice is to inform the general public that you intend to apply for a grant of administration so other potential inheritors, or someone who knows about a will, have a chance to come forward. You have to wait 14 days after doing this before you can complete the remaining steps.
After the 14 days are up, you can send in the following to the Registrar of the Supreme Court in order to complete the application. The following forms are available on the Supreme Court of the Northern Territory’s website as part of the site’s probate kit. You will also need to pay any relevant fees in order for an application to be considered.
- The application form (form 88A)
- A sworn affidavit (form 88K)
- Affidavit of death, along with the original death certificate plus a certified copy (form 88G)
- Affidavit of assets and liabilities (form 88T)
- Affidavit of publication, search for a will and search for other applications (form 88I)
- Oath of office (form 88J)
- The consent of any other potential inheritors who have agreed that you should administer the estate (form 88L) plus a sworn affidavit of consent (form 88M)
- Draft grant letters of administration in triplicate
In rare situations, such as if there are doubts about trustworthiness, the courts may require the administrator to enter into a bond with surety. This involves putting down a bond to help guarantee the proper administration of the estate.
Once someone is given a letter of administration, they can take it to a bank, the intestate’s superannuation trustee, a life insurance company and elsewhere as needed in order to prove that they are legally entitled to access the intestate's assets.