A person who dies without writing a Will is said to have died “intestate”. Dying intestate means that the preferences of the deceased are not respected in the distribution of the deceased estate, and the deceased has no option to make provision for those who will go unrecognised under succession law.
A partially intestate estate refers to a situation where a person passes away without a valid Will for their entire estate, but they have made some provisions for the distribution of their assets through other means, such as joint ownership, beneficiary designations, or trusts.
The intestacy laws specify the order of priority for inheritances. The following is a general outline of how the estate would be distributed:
- Spouse or de facto partner, unless the deceased had children from a previous relationship, the spouse or de facto partner may receive the household chattels and a statutory legacy (a fixed sum) from the estate, with the remainder divided between the spouse or de facto partner and the children;
- Children, however, if a child has predeceased the deceased but has living descendants (the deceased’s grandchildren), those descendants usually inherit the share that would have been given to their parent;
- Parents of the deceased;
- Siblings, however, if a sibling has predeceased the deceased but has living descendants (nieces/nephews), those descendants typically inherit the share that would have been given to their parent; and
- If there are no surviving spouse or de facto partner, children, parents, or siblings, the estate may pass to other relatives according to a specified order of priority under the intestacy laws.
If a person dies intestate and there is no surviving spouse or de facto partner and no children, the distribution of the estate Will follow a specific order of priority based on the laws of intestacy. In such cases, the estate would typically be distributed in the following manner:
- Siblings, however, if a sibling has predeceased the deceased but has living descendants (nieces/nephews), those descendants typically inherit the share that would have been given to their parent;
- Grandparents, however, if one grandparent is deceased but has living descendants (aunts, uncles, or cousins), those descendants may inherit the share that would have been given to the deceased grandparent;
- Aunts and uncles; and
- If there are no surviving relatives within the categories, the estate may pass to more distant relatives, such as great-aunts, great-uncles, or cousins, based on the order of priority defined by the intestacy laws.
If you believe that you are entitled to a benefit from a deceased estate, you must act without delay to ensure that you can make an application to the Court to preserve and protect your interest. Depending on the circumstances, you may need to consider making a family provision claim.