If a person in Australia dies with a Will, then the executors named in the Will need to apply to the Supreme Court for a Grant of Probate. However, if a person dies without leaving a Will, or the Will is not valid, then someone (usually the closest relatives) can apply to the Supreme Court of the relevant state or territory to be the administrator of the estate. This process is called applying for a Grant of Letters of Administration in Australia. Moreover, each state or territory has different laws and rules about who is entitled to share in the estate.
What are Letters of Administration?
When a person dies leaving real property (land or anything attached to it) or personal property of any kind, that property must be distributed. The deceased can direct, during his or her lifetime, how the estate is to be distributed after death by drawing up a Will. However, if the deceased died without a Will, or the Will is declared invalid, then deceased is said to have died intestate.
Intestacy occurs when either the whole or part of the deceased’s estate is not disposed of by a Will. Total intestacy occurs when the deceased failed to make a Will at all, failed to make a valid Will or made a valid Will but all the beneficiaries have since died. Partial intestacy occurs when the deceased made a valid Will but the terms of the Will do not dispose of the whole of the estate.
If you are the spouse, de facto spouse or other direct family member of the deceased, then you can apply to the Supreme Court to become the administrator of their estate. Following your application, the Supreme Court will issue a Grant of Letters of Administration in the name of the applicant. The Grant will then authorize and enable you to collect the assets of the deceased and distribute them according to the State intestacy laws.
Each State or Territory has their own laws that govern who is entitled to benefit in the estate of the deceased on intestacy. The persons that are entitled to benefit in the estate are also those persons entitled to apply to the Supreme Court for letters of administration.
Do I need to obtain letters of administration?
Not necessarily. The main reason that a grant of letters of administration is required is that some organisations which hold assets of the estate will not release them to the administrator for distribution without sight of a grant of letters of administration from the Supreme Court.
You will need to make a list of everything the deceased owned or was entitled to and then make contact with the financial institutions concerned to establish whether they require a grant. This will be more relevant for smaller estates. For larger estates comprising real estate, a grant of representation will almost certainly be required.
Call 1300 728 200 and speak to one of our consultants about your situation and about the kits and services offered by AussieLegal.
Applicable laws
Each State has its own laws governing the administration of the estate of an intestate person. In NSW, the applicable laws are the Succession Act 2006, Wills, Probate and Administration Act 1898 and the Supreme Court Rules 1970 (NSW). If the deceased was domiciled in NSW and the assets are in NSW, then the law of NSW will be the applicable law.
Applicable Court
Applications are filed at the Probate Office of the Supreme Court of NSW. A grant of Letters of Administration will generally be issued by the Court within 6 working days of the application being filed, unless additional information is required. If further information is needed, requests, known as requisitions, will generally be sent out by letter within three (3) working days.
When intestacy occurs
When a person dies leaving real property (land or anything attached to it) or personal property of any kind, that property must be distributed. The deceased can direct, during his or her lifetime, how the estate is to be distributed after death by drawing up a Will.
Intestacy occurs when either the whole or part of the deceased’s estate is not disposed of by a Will. Total intestacy occurs when the deceased failed to make a Will at all, failed to make a valid Will or made a valid Will but all the beneficiaries have since died. Partial intestacy occurs when the deceased made a valid Will but the terms of the Will do not dispose of the whole of the estate.
The distribution of an intestate estate
State law allows for the appointment of an administrator to administrate the deceased’s estate in the absence of a Will appointing an executor chosen by the deceased. This person is given the duty of paying any debts the estate owed and distributing the assets in accordance with the rules of intestacy. Moreover, they are given legal authority to act under a court order which is known as the grant of letters of administration.
Who can apply for letters of administration?
Section 63 of the Wills Probate and Administration Act 1982 sets out who can be appointed as an administrator. Where the deceased died after 1 March 2010, the Succession Act, Ch 4 applies.
The Court can appoint a spouse (Including de facto), one or more of the next of kin or the spouse together with one or more of the next of kin. If no such person exists or if, in the opinion of the court, the person concerned is not fit to be trusted with the responsibility, the Court can grant administration to any person it thinks fit.
The role of the administrator
On the grant of administration of the deceased’s estate, all the deceased’s assets become vested with (become the property of) the administrator. For example, if the deceased held shares in a company, upon seeing the grant from the court, the company will register the administrator as the shareholder in place of the deceased. This will enable the administrator to sell the shares and distribute the proceeds in accordance with the intestacy rules.
The legal authority of the administrator to deal with the deceased person’s estate has been confirmed by the court. This will satisfy those institutions who hold the deceased’s assets that the administrator has the authority to deal with those assets. Hence, it will give the administrator some protection from liability in dealing with the estate.
The purpose of the State rules of intestacy
Intestacy occurs quite frequently in Australia. The aim of the legislation in each state is to try and produce the same sort of result as if the deceased had made a Will. It identifies the deceased’s closest relatives as the main beneficiaries and assumes that these are the people that the deceased would most want to benefit.
The rules make assumptions about who the deceased is closest to. Therefore, the rules do not take account of individual circumstances. Moreover, the rules are designed to act as a safety net to protect those who have failed for whatever reason to direct what they would like to happen to their assets when they die.
An explanation of the rules of intestacy
Each State and Territory in Australia has rules governing how the estate of an intestate is to be distributed. Since the intestacy provisions of the Succession Act 2006 became law in 2010, there are different provisions for each of 2 situations.
The following summarises the main changes to the intestacy provisions under the Succession Act 2006, Div 4:
If the intestate dies without a spouse or issue, the distribution pattern is similar to the previous law except that first cousins of the deceased are now entitled to benefit—Pt 4.3, which includes:
Relatives may take in separate capacities—e.g., child of deceased maternal aunt, paternal uncle, s132.
Call 1300 728 200 and speak to one of our consultants about your situation and about the kits and services offered by AussieLegal.
Applying for Letters of Administration in Victoria
Applicable Laws
Each State has its own laws governing the administration of the estate of an intestate person. In Victoria, the applicable laws are the Administration and Probate Act 1958 and the Supreme Court (Administration and Probate) Rules 2004 (VIC). Hence, if the deceased was domiciled in Victoria and the assets are in Victoria then the law of Victoria will be the applicable law.
Applicable Court
Applications are filed at the Probate Office of the Supreme Court of Victoria. A grant of Letters of Administration will generally be issued by the Court within 5 working days of the application being filed unless additional information is required. If further information is needed, requests, known as requisitions, will generally be sent out by letter within 3 working days.
When does intestacy occur?
When intestacy occurs
When a person dies leaving real property (land or anything attached to it) or personal property of any kind, that property must be distributed. The deceased can direct, during his or her lifetime, how the estate is to be distributed after death by drawing up a Will.
Intestacy occurs when either the whole or part of the deceased’s estate is not disposed of by a Will. Total intestacy occurs when the deceased failed to make a Will at all, failed to make a valid Will or made a valid Will but all the beneficiaries have since died. Partial intestacy occurs when the deceased made a valid Will but the terms of the Will do not dispose of the whole of the estate.
The distribution of an intestate estate
State law allows for the appointment of an administrator to administrate the deceased’s estate in the absence of a Will appointing an executor chosen by the deceased. This person is given the duty of paying any debts the estate owed and distributing the assets in accordance with the rules of intestacy. Moreover, they are given legal authority to act under a court order which is known as the grant of letters of administration.
Who can apply for letters of administration?
The legislation does not specify who is entitled to apply for a grant of letters of administration. Rather it is a result of common law precedents.
The “common law” is established over time by Judges who make decisions on points of law not covered by statute which are binding on lower courts in the same jurisdiction. Common law has established that the next of kin can apply for letters of administration, on the basis that they will inherit in accordance with the state laws of intestacy which determine who will inherit a deceased estate in the event that the deceased did not leave behind a Will.
This generally means that the application can be made by a spouse or de facto partner, known in Victoria as a domestic partner, or child of the deceased. If no such person exists or if, in the opinion of the court, the person concerned is not fit to be trusted with the responsibility, the Court can grant administration to any person it thinks fit.
Definition of a domestic partner
References in the legislation to the partner of the deceased include both a spouse and a domestic partner.
A domestic partner of a person who dies is defined in section 3 Administration and Probate Act 1958 as a person who, though not married, was living with the deceased at the time of their death as a couple on a genuine domestic basis (irrespective of gender) and had either been living with the deceased in that way continuously for a period of at least 2 years immediately before the deceased’s death or is the other parent of a child of the deceased who was under 18 at the time of death.
In determining whether persons were domestic partners of each other, the court can take into account all the circumstances of the relationship including the following matters referred to in section 275(2) of the Property Law Act 1958:
The role of the administrator
On the grant of administration of the deceased’s estate, all the deceased’s assets become vested with (become the property of) the administrator. For example, if the deceased held shares in a company, upon seeing the grant from the court, the company will register the administrator as the shareholder in place of the deceased. This will enable the administrator to sell the shares and distribute the proceeds in accordance with the intestacy rules discussed below.
The legal authority of the administrator to deal with the deceased person’s estate has been confirmed by the court. This will satisfy those institutions who hold the deceased’s assets that the administrator has the authority to deal with those assets and will give the administrator some protection from liability in dealing with the estate.
The purpose of the State rules of intestacy
Intestacy occurs quite frequently in Australia. Government statistics reveal that some 6 -8% of the matters dealt with by the probate registry of the Supreme Court of Victoria involve applications made in circumstances of intestacy.
The aim of the legislation in each state is to put try and produce the same sort of result as if the deceased had made a will. It identifies the deceased’s closest relatives as the main beneficiaries and assumes that these are the people that the deceased would most want to benefit.
The rules make assumptions about who the deceased is closest to. Therefore, the rules do not take account of individual circumstances. Moreover, the rules are designed to act as a safety net to protect those who have failed for whatever reason to direct what they would like to happen to their assets when they die.
An explanation of the rules of intestacy
Each State and Territory in Australia has rules governing how the estate of an intestate is to be distributed. In Victoria, the rules are set out in the Administration and Probate Act 1958 and the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017.
A. If there are no children but a surviving spouse OR domestic partner, then the whole of the estate will pass to the spouse or the de facto.
B. When there are no children but a surviving spouse AND domestic partner, then their respective shares will depend on the duration of the domestic relationship. Please refer to the following table which explains the rules:
Length of time the DP lived with the deceased prior to death Spouse entitlement DP Entitlement
NB. You will need to refer to the definition of a domestic partner explained in paragraph 6.
If the deceased had lived with a partner for less than two years on a genuine domestic basis, they would not meet the definition of a domestic partner unless they had a child together.
Please note that a partner in these circumstances may still have a family provision claim pursuant to section 91 Administration and Probate Act 1958. This is explained in more detail in paragraph 10 below.
C. If the deceased had a surviving spouse and children of that relationship, the spouse would receive the personal chattels, i.e., furniture, effects, cars, garden effects, pets, plate, plated articles, linen, china, glass, books, pictures, jewellery, ornaments, musical instruments, wines and food but not money, stocks or shares or anything used for business purposes.
In addition, if the estate is valued less than $100,000, the spouse will get the remainder of the estate. If the estate is valued at over $100,000, the spouse will get $100,000 plus interest plus a third of the balance. The remaining two thirds will be divided between the children or in the event of their death their share will be divided amongst their children.
[NB. The interest on the $100,000 is from the date of death to the date of payment]
If the deceased had a surviving spouse and children NOT of that relationship, the spouse would receive the personal chattels. In addition, the 1st $451,909 and 50% of the balance with the remaining 50% amongst the children.
D. If the deceased had children and a domestic partner, and if the domestic partner had lived with the deceased continuously for over 2 years, the domestic partner would inherit in the same way as a surviving spouse as above.
Also, if the domestic relationship was under two years, then the children would inherit. However, if the children were the children both of the deceased and the domestic partner then the domestic partner would inherit the first $100,000 and a third of the remainder of the estate as in example C above.
E. If the deceased left children, a spouse AND a domestic partner, then the partner’s share (meaning the first $100,000 plus interest plus a third of the reminder of the estate) would be divided between the spouse and domestic partner based on the duration of the domestic relationship prior to the death of the deceased as set out in the table in paragraph B above.
F. If the deceased left children but no surviving spouse or domestic partner, the children would inherit. If a child had died, their share would go to their children (the grandchildren).
G. If the deceased left no children, spouse or domestic partner, family members would inherit in the following order:
The estate does not pass to the government unless there are no living relatives.
Call 1300 728 200 and speak to one of our consultants about your situation and about the kits and services offered by AussieLegal.
Applying for Letters of Administration in Queensland
Applicable laws
Each State has its own laws governing the administration of the estate of an intestate person. If the deceased was domiciled in QLD and the assets are in QLD then the law of QLD will be the applicable law.
If you die without a Will, you are said to have died ‘intestate’. In this case, your assets are distributed in line with Part 3 of the Succession Act 1981 (the Act).
Applicable Court
Applications are filed at the Probate Office of the Supreme Court of QLD. A grant of Letters of Administration will generally be issued by the Court within 3 to 6 weeks of the application being filed unless additional information is required. If further information is needed, requests, known as requisitions, will be sent out by letter.
When does intestacy occur?
When a person dies leaving real property (land or anything attached to it) or personal property of any kind, that property must be distributed. The deceased can direct, during his or her lifetime, how the estate is to be distributed after death by drawing up a Will.
Intestacy occurs when either the whole or part of the deceased’s estate is not disposed of by a Will. Total intestacy occurs when the deceased failed to make a Will at all, failed to make a valid Will or made a valid Will but all the beneficiaries have since died. Partial intestacy occurs when the deceased made a valid Will, but the terms of the will do not dispose of the whole of the estate.
The distribution of an intestate estate
The State law allows for the appointment of an administrator to administrate the deceased’s estate in the absence of a Will appointing an executor chosen by the deceased.
This person is given the duty of paying any debts the estate owed and distributing the assets in accordance with the rules of intestacy. They are given legal authority to act under a court order which is known as the grant of letters of administration.
Who can apply for letters of administration?
The Uniform Civil Procedure Rules 1999 and Part 3 of the Succession Act 1981 set out the persons to whom the court may grant letters of administration on intestacy in descending order of priority as follows:
The court can make a grant to any person in priority to any person mentioned above. For example, a parent of the deceased will receive a grant in priority to the deceased’s brother or sister.
Each applicant must establish priority by proving that any person higher up in the list is not entitled either because of death, incapacity or renunciation. For example, if the brother of the deceased wished to make an application to be appointed as the administrator of the estate. He would then have to confirm in his application that the deceased did not leave a spouse, de facto partner or any children and provide evidence of the death, in capacity or renunciation of the deceased’s parents. Hence, proof of this Will need to be included in the application.
If the deceased left both a spouse and de facto partner, the court can make a grant to one or more of them, or to a person lower in the order of priority. The applicant does not have to establish priority for a person equal or lower than the applicant in the order of priority. However, sworn evidence will need to be provided as to the existence or non-existence of a spouse or a person claiming to be a de facto partner.
Definition of a De facto relationship
A de facto relationship is a relationship in which a couple lives together on a genuine domestic basis. This definition is the same across Queensland, New South Wales, Victoria, Northern Territory, South Australia, Western Australia, Tasmania, and the Australian Capital Territory.
Couples who are same sex or opposite sex are included in the definition of de facto relationship under Australian law. A couple by marriage or who are related by family cannot be considered to be in a de facto relationship. However, if a person is legally married they can still be considered to be in a de facto relationship with another person they are not married to.
A person would not have a de facto partner unless they have lived together as a couple for two years without separation. Therefore, the length of time to be considered de facto is two years. However, if there are children or substantial contributions to joint property, exceptions are made to this rule.
De facto relationships are governed under the Family Law Act 1975. This means that your rights regarding property settlement, child maintenance and separation are dealt with under the Family Law Act 1975. De facto relationships in Western Australia are governed by the Family Law Act 1997 (WA), however.
The role of the administrator
On the grant of administration of the deceased’s estate, all the deceased’s assets become vested with (become the property of) the administrator. For example, if the deceased held shares in a company, upon seeing the grant from the court, the company will register the administrator as the shareholder in place of the deceased. This will enable the administrator to sell the shares and distribute the proceeds in accordance with the intestacy rules discussed below.
The legal authority of the administrator to deal with the deceased person’s estate has been confirmed by the court. This will satisfy those institutions who hold the deceased’s assets that the administrator has the authority to deal with those assets and will give the administrator some protection from liability in dealing with the estate.
The purpose of the State rules of intestacy
Intestacy occurs quite frequently in Australia. The aim of the legislation in each state is to try and produce the same sort of result as if the deceased had made a Will.
It identifies the deceased’s closest relatives as the main beneficiaries and assumes that these are the people that the deceased would most want to benefit. The rules make assumptions about who the deceased is closest to. Therefore, the rules do not take account of individual circumstances. Moreover, the rules are designed to act as a safety net to protect those who have failed for whatever reason to direct what they would like to happen to their assets when they die.
An explanation of the rules of intestacy
Each State and Territory in Australia has rules governing how the estate of an intestate is to be distributed. In Queensland, the rules are set out in Sections 35 – 37 and Schedule 2 of the Succession Act 1981.
Please note, references to the deceased’s spouse include both a spouse and a de facto partner.
A. If there are no children but a surviving spouse / de facto partner (who meets the criteria explained above), then the whole of the estate will pass to the spouse or the de facto.
B. When there are no children but a surviving spouse AND domestic partner, then their respective shares will depend on the options contained in Section 36 Succession Act 1981 as follows:
Either
i. In accordance with a written distribution agreement between the spouses about distributing the entitlement between them,
ii. In accordance with a distribution order made by the court. A spouse / de facto or personal representative (i.e., the Administrator) can apply to the court for a distribution order. The court may order that the entitlement is distributed in the way it considers is just and equitable, this could mean that the entitlement is solely to be distributed to 1 of the spouses, or
iii. In equal shares as decided by the Administrator on service of a notice under section 36(3). The notice will state that the administrator may be entitled to distribute any entitlement of the spouses equally after 3 months unless they either enter into a distribution agreement or apply to the court for a distribution order.
C. If the deceased had children and a surviving spouse, the spouse would receive the household chattels (i.e., furniture, effects, cars, garden effects, pets, plate, plated articles, linen, china, glass, books, pictures, jewellery, ornaments, musical instruments, wines and food but not money, stocks or shares or anything used for business purposes).
AND
If the estate is valued less than $150,000, the spouse will get the remainder of the estate. Moreover, if the estate is valued at over $150,000, the spouse will get $150,000 plus one half of the balance (if there is only one child who survived (or who did not survive but left children) or one third of the balance if there is more than one child. The remaining one half or two thirds will be divided between the children or in the event of their death their share will be divided amongst their children.
D. If the deceased had children and a de facto partner, and if the de facto partner had lived with the deceased continuously for over 2 years, the de facto partner would inherit in the same way as a surviving spouse as above. If the de facto relationship was under two years, the children would inherit.
E. If the deceased left children, a spouse AND a de facto partner, then the spouses share (meaning the first $150,000 plus household contents plus a third or half of the remainder (depending on whether there was more than one child) would be divided between the spouse and de facto partner based on the options explained in Paragraph B above.
F. If the deceased left children but no surviving spouse or de facto partner, the children would inherit. If a child had died, their share would go to their children (the grandchildren).
G. If the deceased left no children, spouse or de facto partner, the parent(s) would inherit.
H. If the deceased left no children, spouse / de facto or parents, the next of kin (meaning brothers, sisters, grandparents, uncles/aunts, nephews/nieces and cousins) would inherit in the following order:
If none of the above exist, then the estate will pass to the State.
Call 1300 728 200 and speak to one of our consultants about your situation and about the kits and services offered by AussieLegal.
Applying for Letters of Administration in South Australia
Applicable laws
Each State has its own laws governing the administration of the estate of an intestate person. In South Australia, the applicable laws are the Administration and Probate Act 1919 and the Supreme Court Civil Rules 2006 (SA).
If the deceased was domiciled in South Australia and the assets are in South Australia, then the law of South Australia will be the applicable law.
Applicable Court
Applications are filed at the Probate Office of the Supreme Court of South Australia. A grant of Letters of Administration will generally be issued by the Court within 1 week of the application being filed unless additional information is required.
If further information is needed, requests, known as requisitions, will generally be sent out by letter within 1-2 weeks.
When does intestacy occur?
When a person dies leaving real property (land or anything attached to it) or personal property of any kind, that property must be distributed. The deceased can direct, during his or her lifetime, how the estate is to be distributed after death by drawing up a Will.
Intestacy occurs when either the whole or part of the deceased’s estate is not disposed of by a Will. Total intestacy occurs when the deceased failed to make a Will at all, failed to make a valid Will or made a valid Will but all the beneficiaries have since died. Partial intestacy occurs when the deceased made a valid will but the terms of the will do not dispose of the whole of the estate.
The distribution of an intestate estate
State law allows for the appointment of an administrator to administrate the deceased’s estate in the absence of a Will appointing an executor chosen by the deceased. This person is given the duty of paying any debts the estate owed and distributing the assets in accordance with the rules of intestacy. Moreover, they are given legal authority to act under a court order which is known as the grant of letters of administration.
Who can apply for letters of administration?
The legislation does not specify who is entitled to apply for a grant of letters of administration. Rather, it is a result of common law precedents. The “common law” is established over time by Judges who make decisions on points of law not covered by statute which are binding on lower courts in the same jurisdiction. Common law has established that the next of kin can apply for letters of administration, on the basis that they will inherit in accordance with the state laws of intestacy, which determine who will inherit a deceased estate in the event that the deceased did not leave behind a Will.
This generally means that the application can be made by a spouse or de facto partner, or child of the deceased. Under the South Australian legislation a married spouse is known as a lawful spouse, and a de facto partner is known as a putative spouse.
If no such person exists or if, in the opinion of the court, the person concerned is not fit to be trusted with the responsibility, the Court can grant administration to any person it thinks fit.
Definition of a De facto relationship
A de facto relationship is a relationship in which a couple lives together on a genuine domestic basis. This definition is the same across Queensland, New South Wales, Victoria, Northern Territory, South Australia, Western Australia, Tasmania, and the Australian Capital Territory.
Couples who are same sex or opposite sex are included in the definition of de facto relationship under Australian law. A couple by marriage or who are related by family cannot be considered to be in a de facto relationship. However, if a person is legally married, they can still be considered to be in a de facto relationship with another person they are not married to.
A person would not have a de facto partner unless they have lived together as a couple for two years without separation. Therefore, the length of time to be considered de facto is two years. However, if there are children or substantial contributions to joint property, exceptions are made to this rule.
De facto relationships are governed under the Family Law Act 1975. This means that your rights regarding property settlement, child maintenance and separation are dealt with under the Family Law Act 1975. De facto relationships in Western Australia are governed by the Family Law Act 1997 (WA), however.
The purpose of the State rules of intestacy
Intestacy occurs quite frequently in Australia. Government statistics reveal that some 6 -8% of the matters dealt with by the probate registry of the Supreme Court of South Australia involve applications made in circumstances of intestacy.
The aim of the legislation in each state is to try and produce the same sort of result as if the deceased had made a will. It identifies the deceased’s closest relatives as the main beneficiaries and assumes that these are the people that the deceased would most want to benefit.
The rules make assumptions about who the deceased is closest to. Therefore, the rules do not take account of individual circumstances. Moreover, the rules are designed to act as a safety net to protect those who have failed for whatever reason to direct what they would like to happen to their assets when they die.
An explanation of the rules of intestacy
Each State and Territory in Australia has rules governing how the estate of an intestate is to be distributed. In South Australia, the rules are set out in Sections 72A – 72O of the Administration and Probate Act 1919.
A. If there are no children but a surviving spouse OR domestic partner, then the whole of the estate will pass to the spouse or the de facto.
B. When there are no children but a surviving spouse AND domestic partner, then they will take equal shares of the estate.
C. If the deceased had children and a surviving spouse, the spouse would receive the personal chattels (i.e., furniture, effects, cars, garden effects, pets, plate, plated articles, linen, china, glass, books, pictures, jewellery, ornaments, musical instruments, wines and food but not money, stocks or shares or anything used for business purposes);
AND
If the estate is valued less than $100,000, the spouse will get the remainder of the estate. Moreover, if the estate is valued at over $100,000, the spouse will get $100,000 plus one half of the balance. The remaining half will be divided between the children, or in the event of their death, their share will be divided amongst their children.
D. If the deceased had children and a domestic partner, and if the domestic partner had lived with the deceased continuously for over 5 years, the putative spouse would inherit in the same way as a lawful spouse as above. If the domestic relationship was under 5 years, the children would inherit but if the children were the children both of the deceased and the putative spouse, then the domestic partner would inherit the first $100,000 and one half of the remainder of the estate as in example B above.
E. If the deceased left children, a spouse AND a domestic partner, then the partner’s share (meaning the first $100,000 plus one half of the reminder of the estate) would be divided between the lawful spouse and putative spouse.
F. If the deceased left children but no surviving spouse or domestic partner, the children would inherit. If a child had died, their share would go to their children (the grandchildren).
G. If the deceased left no children, spouse or domestic partner, family members would inherit in the following order:
If none of the above exist, then the estate will pass to the Crown.
Call 1300 728 200 and speak to one of our consultants about your situation and about the kits and services offered by AussieLegal.
Applicable laws
Each State has its own laws governing the administration of the estate of an intestate person. If the deceased was domiciled in WA and the assets are in WA, then the law of WA will be the applicable law.
Applicable Court
Applications are filed at the Probate Office of the Supreme Court of WA. A grant of Letters of Administration will generally be issued by the Court within 3 to 6 weeks of the application being filed unless additional information is required. If further information is needed, requests, known as requisitions, will be sent out by letter.
When does intestacy occur?
When a person dies leaving real property (land or anything attached to it) or personal property of any kind, that property must be distributed. The deceased can direct, during his or her lifetime, how the estate is to be distributed after death by drawing up a Will.
Intestacy occurs when either the whole or part of the deceased’s estate is not disposed of by a Will. Total intestacy occurs when the deceased failed to make a Will at all, failed to make a valid Will or made a valid Will but all the beneficiaries have since died. Partial intestacy occurs when the deceased made a valid Will, but the terms of the will do not dispose of the whole of the estate.
The distribution of an intestate estate
State law allows for the appointment of an administrator to administrate the deceased’s estate in the absence of a Will appointing an executor chosen by the deceased. This person is given the duty of paying any debts the estate owed and distributing the assets in accordance with the rules of intestacy. In addition, they are given legal authority to act under a court order which is known as the grant of letters of administration.
Who can apply for letters of administration?
Section 25 of the Administration Act 1903 sets out who is entitled to apply for a grant of letters of administration. An application can be made by or more of the persons entitled in distribution to the estate of the intestate.
If there is no such person resident within the jurisdiction and fit to be trusted, or a person who is entitled fails to apply, the Court can grant administration to any other person even if they are a creditor. The persons who are entitled to inherit the estate of a person who has died without leaving a will are set out in the State rules if intestacy.
Section 25 of the Act sets out who will be entitled to inherit in certain circumstances. The application is usually made by the next of kin.
Definition of a De facto relationship
A de facto partner of a person who dies is defined in section 13A Interpretation Act 1984 as a person who has lived in a de facto relationship.
A de facto relationship is defined as a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship. It does not matter whether the persons are different sexes or the same sex or if either of the persons is legally married to someone else or in another de facto relationship.
The following factors are indicators of whether a de facto relationship exists but are not essential:
The purpose of the State rules of intestacy
Intestacy occurs quite frequently in Australia. Government statistics reveal that in 1994 just over 10% of applications for grants in WA were made in circumstances of intestacy.
The aim of the legislation in each State is to try and produce the same sort of result as if the deceased had made a will. It identifies the deceased’s closest relatives as the main beneficiaries and assumes that these are the people that the deceased would most want to benefit.
The rules make assumptions about who the deceased is closest to. Therefore, the rules do not take account of individual circumstances. Moreover, the rules are designed to act as a safety net to protect those who have failed for whatever reason to direct what they would like to happen to their assets when they die.
An explanation of the rules of intestacy
Where the deceased died on or after 30 March 2022
A. If the deceased had children and a surviving spouse:
B. If there are no children but a surviving spouse OR de facto partner and also one or more of the following – parent, brother/sister, child of brother/sister (i.e., nephews/nieces):
As regards the other 1/2:
Where the deceased left a parent(s):
Where deceased left no parent(s):
Where the deceased died before 30 March 2022
A. If there are no children but a surviving spouse OR de facto partner and also one or more of the following – parent, brother/sister, child of brother/sister (i.e., nephews/nieces):
i. The spouse / de facto is entitled to all the household contents.
ii. If the net value of the estate does not exceed $75,000 – the spouse/de facto gets the whole estate.
iii. If the net value of the estate exceeds $75,000 – the spouse/de facto gets $75,000 + interest and ½ the rest.
As regards the other ½:
Where the deceased left a parent(s):
Where deceased left no parent(s):
B. If the deceased had children and a surviving spouse, the spouse would receive all the household contents (i.e., furniture, effects, cars, garden effects, pets, plate, plated articles, linen, china, glass, books, pictures, jewellery, ornaments, musical instruments, wines and food but not money, stocks or shares or anything used for business purposes),
AND
If the estate is valued less than $50,000, the spouse will get the whole estate. Moreover, if the estate is valued at over $50,000, the spouse will get $50,000 plus interest plus a third of the balance. The remaining two thirds will be divided between the children or in the event of their death their share will be divided amongst their children.
[NB. The interest on the $50,000 is from the date of death to the date of payment at the rate of 5% p.a.]
C. If the deceased had children and a de facto partner, and if the de facto partner had lived with the deceased continuously for over 2 years, the domestic partner would inherit in the same way as a surviving spouse as above.
D. If the deceased left children, a spouse AND a de facto partner, then the partner’s share (meaning the first $50,000 plus interest plus a third of the reminder of the estate) would be divided between the spouse and de facto partner based on the duration of the de facto relationship prior to the death of the deceased as discussed in paragraph 6 above.
E. If the deceased left children but no surviving spouse or de facto partner, the children would inherit. If a child had died, their share would go to their children (the grandchildren).
F. If the deceased left a spouse/ de facto but no children, parent, brother / sister, child of brother / sister, the spouse or de facto will inherit the whole estate.
G. If the deceased left no spouse / de facto or children but did leave a parent(s) and one of the following namely a brother(s) / sister(s) or a child of a brother / sister (i.e., nephews / nieces):
H. If the deceased left a parent(s) but no spouse/de facto, children, siblings, nephews or nieces, then the parent(s) will receive the whole estate.
I. If the deceased left a brother / sister, nephew / niece but no spouse / de facto, children or parents, then the brother / sister, nephew and nieces will share the estate.
J. If the deceased left grandparent(s) but no spouse / de facto, children, parent, brother / sister, nephew / niece, then the grandparent(s) will inherit the estate.
K. If the deceased left an uncle / aunt and cousin(s) but no spouse / de facto, children, parent, brother / sister, nephew / niece, grandparents, then the uncle / aunt and cousin(s).
L. If the deceased left no spouse / de facto, children, brother / sister, nephew / niece, grandparent, uncle / aunt, cousins then the whole of the estate passes to the Crown.
Call 1300 728 200 and speak to one of our consultants about your situation and about the kits and services offered by AussieLegal.
Applying for Letters of Administration in the Australian Capital Territory
Applicable laws
Each State has its own laws governing the administration of the estate of an intestate person. In the ACT, the applicable laws are the Administration and Probate Act 1929 (ACT).
Applicable Court
Applications are filed at the Probate Office of the Supreme Court of the ACT. A grant of Letters of Administration will generally be issued by the Court within 14 working days of the application being filed unless additional information is required. If further information is needed, requests, known as requisitions, will generally be sent out by letter within 3 working days.
When intestacy occurs
When a person dies leaving real property (land or anything attached to it) or personal property of any kind, that property must be distributed. The deceased can direct, during his or her lifetime, how the estate is to be distributed after death by drawing up a Will.
Intestacy occurs when either the whole or part of the deceased’s estate is not disposed of by a Will. Total intestacy occurs when the deceased failed to make a Will at all, failed to make a valid Will or made a valid Will but all the beneficiaries have since died. Partial intestacy occurs when the deceased made a valid Will but the terms of the Will do not dispose of the whole of the estate.
The distribution of an intestate estate
State law allows for the appointment of an administrator to administrate the deceased’s estate in the absence of a will appointing an executor chosen by the deceased. This person is given the duty of paying any debts the estate owed and distributing the assets in accordance with the rules of intestacy. They are given legal authority to act under a court order which is known as the grant of letters of administration.
Who can apply for letters of administration?
The Probate and Administration Act 1929 sets out who can be appointed as an administrator. The Court can appoint a spouse—including de facto (see below), one or more of the next of kin or the spouse together with one or more of the next of kin. If no such person exists or if, in the opinion of the court, the person concerned is not fit to be trusted with the responsibility, the Court can grant administration to any person it thinks fit.
The purpose of the State rules of intestacy
Intestacy occurs quite frequently in Australia. Government statistics reveal that 6% of the matters dealt with by the probate registry of the Supreme Court involved applications made in circumstances of intestacy.
The aim of the legislation in each state is to try and produce the same sort of result as if the deceased had made a will. It identifies the deceased’s closest relatives as the main beneficiaries and assumes that these are the people that the deceased would most want to benefit.
The rules make assumptions about who the deceased is closest to. Therefore, the rules do not take account of individual circumstances. Moreover, the rules are designed to act as a safety net to protect those who have failed for whatever reason to direct what they would like to happen to their assets when they die.
An explanation of the intestacy rules
Distribution of estate if intestate is survived by partner
How intestate estate of intestate is to be distributed:
The partner is entitled to the whole of the intestate estate.
a. If the value of the intestate estate does not exceed $200 000, the partner is entitled to the whole of the intestate estate.
b. If the value of the intestate estate exceeds $200 000, the partner is entitled to be paid out of the intestate estate:
i. $200 000, and
ii. interest on that sum, calculated at the rate of 8% per annum from the date of the death of the intestate to the date that sum is paid or appropriated to the partner (inclusive), and
iii. an additional sum equal to:
c. The issue of the intestate are entitled to the balance (if any) of the intestate estate after payment to the partner of the sum or sums to which the partner is entitled under this item.
Distribution of estate if intestate not survived by partner
How intestate estate of intestate is to be distributed:
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Applying for Letters of Administration in the Northern Territory
Applicable laws
Each State has its own laws governing the administration of the estate of an intestate person. In the NT, the applicable laws are the Administration and Probate Act 1993 (NT).
Applicable Court
Applications are filed at the Probate Office of the Supreme Court of the NT. A grant of Letters of Administration will generally be issued by the Court within 14 working days of the application being filed unless additional information is required. If further information is needed, requests, known as requisitions, will generally be sent out by letter within 3 working days.
When intestacy occurs
When a person dies leaving real property (land or anything attached to it) or personal property of any kind, that property must be distributed. The deceased can direct, during his or her lifetime, how the estate is to be distributed after death by drawing up a Will.
Intestacy occurs when either the whole or part of the deceased’s estate is not disposed of by a Will. Total intestacy occurs when the deceased failed to make a Will at all, failed to make a valid Will or made a valid Will but all the beneficiaries have since died. Partial intestacy occurs when the deceased made a valid Will but the terms of the Will do not dispose of the whole of the estate.
The distribution of an intestate estate
State law allows for the appointment of an administrator to administrate the deceased’s estate in the absence of a will appointing an executor chosen by the deceased. This person is given the duty of paying any debts the estate owed and distributing the assets in accordance with the rules of intestacy. They are also given legal authority to act under a court order which is known as the grant of letters of administration.
Who can apply for letters of administration?
The Administration and Probate Act 1993 (NT) sets out who can be appointed as an administrator. The Court can appoint a spouse—including de facto (see below), one or more of the next of kin or the spouse together with one or more of the next of kin.
If no such person exists or if, in the opinion of the court, the person concerned is not fit to be trusted with the responsibility, the Court can grant administration to any person it thinks fit.
The purpose of the State rules of intestacy
Intestacy occurs quite frequently in Australia. Government statistics reveal that 6% of the matters dealt with by the probate registry of the Supreme Court in Tasmania in 2003 involved applications made in circumstances of intestacy.
The aim of the legislation in each state is to try and produce the same sort of result as if the deceased had made a Will. It identifies the deceased’s closest relatives as the main beneficiaries and assumes that these are the people that the deceased would most want to benefit.
The rules make assumptions about who the deceased is closest to. Therefore, the rules do not take account of individual circumstances. Moreover, the rules are designed to act as a safety net to protect those who have failed for whatever reason to direct what they would like to happen to their assets when they die.
An explanation of the rules of intestacy
(a) if the value of the intestate estate does not exceed the prescribed amount ($370,000)–to the whole of the intestate estate; or
(b) if the value of the intestate estate exceeds the prescribed amount–to be paid out of the intestate estate the prescribed sum ($370,000) and an additional sum equal to:
(i) if one child or the issue of one child of the intestate but no other issue of the intestate survives the intestate–one-half of the value of the balance of the intestate estate; or
(ii) if any other case–one-third of the value of the balance of the intestate estate.
(a) if the value of the intestate estate does not exceed the prescribed amount $530,000)–to the whole of the intestate estate; or
(b) if the value of the intestate estate exceeds the prescribed amount–to be paid out of the intestate estate the prescribed sum ($530,000) and an additional sum equal to one-half of the value of the balance of the intestate estate.
If the intestate is not survived by a parent, the brothers and sisters of the intestate who survived the intestate, and the issue who survive the intestate of a brother or sister of the intestate who died before the intestate, are entitled to the balance (if any) of the intestate estate, after payment to the spouse of the sum or sums to which the spouse is entitled to in the shares in which he, she or they would have been entitled to the intestate estate if the intestate had not been survived by his or her spouse.
Call 1300 728 200 and speak to one of our consultants about your situation and about the kits and services offered by AussieLegal.
