LAWYER HELPLINE: ☎ 1800 455 886

The term intestacy relates to a person dying without a will as a result of which the deceased is said to be intestate. This can result in difficulties for people who assumed that they would benefit from the passing of the deceased and serves to totally cut out most non family members except in so far as they may have established some rights to allow intestacy solicitors to make a claim against the estate as dependants of the deceased at the time of death or as a de facto partner.

The law regarding succession in Australia varies dependent on the state or territory. The regulations that determine succession are known as the 'intestacy rules'. If an individual dies without leaving a will then the law of the state or territory where the deceased was resident at the time of death determines what should happen to the assets that comprise the estate of the deceased person by application of the intestacy rules. There are moves to unify the law of succession throughout Australia in cases where there are assets but no will and a project initiated by the Standing Committee of Attorneys General aims to develop uniform succession law throughout Australia. Some states have recently enacted changes in their law to move towards uniformity however at the moment there are still some major differences in the intestacy rules dependent on location. This makes it essential that you are represented by local intestacy solicitors.

Intestate Law

In the event of a person dying without a will in Australia then the intestacy rules are applied and this is also the situation where there is a will that is deemed to be invalid unless there is an earlier will that takes precedence. The rules applied by intestacy solicitors set out a regime for distribution of assets and dictate who can claim dependant on the degree of family relationship and also dependant on the value of the assets. The intestacy rule are statutory which means that they have been passed into law and whilst they may be discriminatory against certain family relationships dependant on precedence they are non the less legally enforceable. Without a will the intestacy rules come into play and notwithstanding promises made by the deceased during their lifetime to leave certain potential beneficiaries a legacy, if that promise is not repeated in writing as evidenced in a legally enforceable valid will then the potential for any such gift will lapse on death. Anyone who wants to have their assets distributed after death, according to their wishes, must leave a valid and legally enforceable will failing which the state will determine the ultimate destination of their assets by applying the intestacy rules. Where there are no qualifying relatives or dependants, under statute, the assets of the deceased will pass to Government.

Priority

In general terms the intestacy rules determine a priority for succession in the event of there being no will with the usual priority as follows :-

• spouses including de facto relationships
• children (or issue of such children if a child predeceases the deceased)
• parents
• siblings
• nieces and nephews
• grandparents
• aunts and uncles (or their children, if an aunt or uncles predeceases the deceased)

Spouse

In most states the meaning of 'spouse' now includes a person who was in a domestic relationship with the deceased at the time of death, defined as a 'de facto relationship'. In determining the existence of a de facto relationship the courts will consider the period of the cohabitation, sexual relationship, living arrangements, financial arrangements, ownership of property and the couples presentation to the outside world.

Dependants

Whilst the order of priority under the intestacy rules looks simple enough there are many potential complications that involve further sub-division of assets between spouses and children in some states and territories with the overriding ability of the dependants of the deceased at the time of death to take action for personal support from the assets of an intestate. Considering that over 50,000 people die without leaving a will in Australia it is not surprising that the intestacy rules are regularly tested in the law courts.

Valid Will

To be legally enforceable an Australian will must :-

• be made by a person over the age of 18 years
• be made willingly without undue influence from another person
• be made by a person of sound mind and full awareness
• be signed and witnessed in accordance with Australian law

Partial Intestacy

It is also possible to have a partial intestacy where there is a valid will but some of the deceased's assets are not distributed by that will and in this case the intestacy rules are applied but only to those undistributed assets with the potential for the Government to claim if there are no qualifying relatives.

Jointly Owned Assets

Even in the event of there being no valid will any assets held jointly will normally pass to the joint owner without the application of the intestacy rules. This usually applies to property jointly held by husband and wife and often to properly jointly held by other co-owners who are not spouses.

Intestate Administration

In all cases of intestacy the state allows for the appointment of an administrator to administrate the estate of the deceased in the absence of the appointment of an executor under a will. The person applying for letters of administration will usually be one or more of the beneficiaries under the intestacy rules.

Solicitors Legal Advice

Our intestacy solicitors deal with matters relating to disputing or challenging wills and contested probate issues. The law varies dependant on the domicile of the deceased, where the will was executed and the location of the assets and as a result there are often different statutes, rules, protocols, practices and time limits applicable to distribution of the estate. Our qualified solicitors operate nationwide and can assist you in every Australian location. Our specialist solicitors are probate experts who deal with contested probate using the no win no fee scheme. If you would like free initial advice with no obligation just complete the contact form and a specialist solicitor will phone you immediately.

HELPLINE: ☎ 1800 455 886