When a person dies without a valid will, they die ‘intestate’. This makes the process of administering their estate (the deceased’s property) a much less personal affair.  

Who controls the estate?  

When there is no will, the court appoints an administrator in place of a nominated executor. This will almost always be the deceased’s next of kin, unless they do not wish to have the responsibility. In which case other family members can apply for the position.   This court appointed person has many responsibilities. They must organise the disposal of the body, pay any of the estate’s debts and taxes and then distribute what remains according to the laws of intestacy.  

Dividing an estate under the laws of intestacy  

Distribution of an intestate’s property is a very strict and impersonal process. The administrator must follow the formal code provided in the Administration Act. The code specifies the order of priority given to relatives and what share in the estate they should each receive.   The order of priority is:

  • Spouse, de facto partner or civil union partner
  • Children
  • Parents
  • Siblings
  • Grandparents
  • Uncles and aunts

 Partners and spouses are given special provision under the Act. They receive a prescribed amount from the estate, $155,000, and all personal chattels.  

Example divisions of property  

  • When the deceased has a spouse, children and parents, the spouse will get all personal chattels and $155,000. From what remains the spouse will get 1/3 and the children will get 2/3 divided equally amongst them. The parents will get nothing.
  • Where the intestate has no spouse but has children, the entire estate will be divided equally among the children.
  • If they have no close relatives, the estate goes to the Crown as ‘ownerless goods’. Provision may be made for persons for whom the deceased would likely have made provision for had they written a will.

 What if the distribution of property isn’t fair?  

If you are related to the intestate and you believe that you have not received your fair share then you can challenge the estate under the Family Protection Act.   Contact Jeremy Sutton, we can help you through the process of making a claim and maximise your chances of getting your fair share of the estate.  


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