Who gets what, how it’s distributed and steps to take
Intestacy is when someone dies without leaving a last will and testament. Without a will that lays out who inherits what, the estate is said to be intestate. An estate might also be partially intestate in the event of a will failing to properly dispose of all assets.
Without clear instructions from the deceased, intestate assets are inherited according to a formula laid out by the government.
The order of inheritance
The general order of inheritance is:
- Spouses or partners
- Children and grandchildren
- Nieces and nephews
- Uncles and aunts
If none of the above can be found then the state may take the intestate inheritance.
How much spouses or partners can inherit?
Generally, a spouse or de-facto partner might be entitled to either or both:
- A statutory legacy: $350,000 worth of assets, adjusted for inflation as of 2009.
- A share: All or a portion of the relevant intestate assets.
Whether they are entitled to a statutory legacy and a share of the total depends on whether there are also children.
What about adopted children?
- Adopted children: Adopted children are considered the same as biological children. Also, being someone’s biological child does not by itself entitle one to an inheritance, unless there is also a clear parents-child relationship.
- Step-relations: Step-relatives, such as mother in law, are not considered family for the purposes of intestate laws and will not directly inherit under them.
- Half siblings: Half siblings are considered the same as full siblings for the purposes of inheritance.
If there are no partners or children
- If there are no spouses or partners, children and grandchildren of the deceased are next in line to inherit.
- If there are no children or grandchildren, the parents of the deceased are next.
- If there are no parents, then brothers and sisters are next.
- If there are no siblings, then grandparents are next.
- If there are no grandparents, then aunts and uncles are next.
- If no family is found, the state can take the inheritance.
In these stages, the children of someone who would have been entitled to inherit may also take their share.
For example, if the deceased left no spouses, partners, children, grandchildren or parents then their siblings would be next in line. If one of their siblings had children but the sibling had passed away, then that sibling’s children (the intestate’s nephews or nieces) would get their parent’s share.
What to do if there’s no will or if there are intestate assets
An administrator will generally need to be appointed to administer assets. This executor then has 12 months from the date of death to make sure assets are divided appropriately, in line with the law.
Their responsibilities include:
- Making sure there’s no will
- Finding and contacting any inheritors
- Paying off debts as needed from the estate
- Contacting the deceased’s financial institutions and similar, and accessing their estate
- Distributing assets in line with the court orders, as agreed, or the intestacy laws
In order to facilitate this, the courts may issue a grant of administration to someone. This lets them access the deceased’s estate, such as their bank account.
Generally the grant of administration may be given to the next of kin who first applies for it, but the courts may decide to award it to someone else on a case-by-case basis.