If you die without a valid Will in Australia, then your estate will be distributed according to the rules of intestacy. Intestacy refers to the situation where someone dies without a Will or with an invalid will. The distribution of the estate is governed by the laws of the state or territory where the deceased person resided.
The specific rules for intestacy may vary slightly between states and territories, but generally, they prioritize the deceased person’s spouse or domestic partner, children, parents, and other close relatives in a specific order. If there are no eligible relatives, the estate may ultimately go to the state.
For more information about applications for letters of administration please see our other articles:
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It’s important to note that without a valid Will, the deceased person has no say in how their assets are distributed. Having a Will allows individuals to express their wishes regarding the distribution of their estate, appoint an executor, and make specific bequests.
It is still possible to file an application for probate if you only have a photocopy or certified copy of the Will. The Registrar of Probates will expect the applicant to explain, in affidavit form:
As part of the application, the applicant / executor will likely have to state who will be affected if the copy of the Will were not to be admitted to probate. That is, if the executor were to assume that there was no Will, how would the intestacy rules be applied, and if there are persons who benefit as a result of the application of those intestacy rules, then the Registrar may request that a Consent (in affidavit form) is obtained from each of the effected persons to say that they are happy for the copy of the will to be admitted to probate.
If the Grant of Probate is issued, then the Grant is likely to be ‘limited’ in that the Grant is only valid until such time as the original Will is found and submitted to the Court.
The ‘limited grant’ will be sufficient for the executor to administer the estate.
AussieLegal offers a range of estate planning products, which includes a DIY Will Kit, which allows you to create your own will. We also offer a Legal Will preparation service, wherein one of our experienced paralegals will prepare your Will for you. If you prefer to have an experienced family lawyer assist you with your Will, then our Legal Will Plus service is the one you need. We also offer a Binding Mutual Wills preparation service for individuals entering into their second marriage.Â
Call us on 1300 728 200 to discuss your situation with one of our consultants.
