What is an intestate estate?

A deceased person’s estate is declared intestate where the deceased has:

• No Will;
• An invalid Will;
• A lost Will;
• A Will that has failed to distribute all their assets; or
• A document that has “wishes” but cannot be legally recognised as a Will.

Where any of the above occurs, one may need to apply to the Supreme Court for a Grant of Letters of Administration.

Who can apply to administer an intestate estate?

Usually, the spouse or de-facto partner, will have to apply to the court for Letters of Administration. However, if the deceased has left no partner, then the person with the greatest interest in the estate under the rules of intestacy will need to apply.

The person with the greatest interest is the person who stands to gain the most from the estate. This can be determined using the same guide that explains the division of the estate on intestacy– see below.

How is the estate divided upon intestacy?

The distribution of an intestate estate where the deceased has left a partner is as follows:

1. If the deceased has left a partner and no children, then the partner is entitled to the entire residuary estate.
2. If the deceased has left a partner and one or more children (of the partner), the partner is entitled to the entire residuary estate.
3. If the deceased has left a partner and one or more children who are not the children of the living partner, then the partner may be entitled to the entire residuary of the estate, unless the estate is worth more than the partner’s statutory legacy, which is currently $559,660, in which case the partner is entitled to:
   1. personal chattels of the estate; and
   2. the amount of the partners statutory legacy between the date of death and the date of payment of the statutory legacy; and
   3. half of the balance of the residuary estate.
4. Following this, the children of the deceased are entitled to the other half of the residuary estate in equal shares. If the child/ren of the deceased have predeceased and left any surviving children, then they take the shares of the deceased parent and if more than on in equal shares.

The distribution of an intestate estate where the deceased has not left a partner:

5. If the deceased leaves children, then they are entitled to the residuary estate, and if more than one in equal shares; or
6. If the deceased leaves no children, but is survived by their parents, then they are entitled to the residuary estate, and if more than one in equal shares; or
7. If the deceased leaves no children and no parents, but is survived by their siblings, then they are entitled to the residuary estate, and if more than one in equal shares. If any siblings have predeceased and left a child or children, then those children receive the share that the sibling would have received; or
8. If the deceased leaves no children, parents, or siblings, but is survived by their grandparents, then they are entitled to the residuary estate, and if more than one in equal shares; or
9. If the deceased leaves no children, parents, siblings or grandparents, but is survived by aunts or uncles, then they are entitled to the residuary estate, and if more than one in equal shares. If any of their aunts or uncles have predeceased, then the children (the cousins of the deceased) of those aunts or uncles are entitled to the share of their parents and if more than one equally; or
10. If no person is entitled to the estate of an intestate, the residuary estate is taken to be property that has no owner and is therefore, passed on to the Crown.

If you require further information about an intestate estate or wish to understand your interest in a deceased estate, please contact our office on (03) 9707 1155 or at admin@wslegal.com.au to arrange a meeting with one of our lawyers.

Intestate estates are deeply complex, but are easy to avoid, please contact our office to create a new Will or update an old one to ensure your estate is divided according to your wishes.