What happens if someone dies without a Will or dies intestate

What happens if someone dies without a Will

If someone dies without leaving a Will, it means they have died intestate. This means that the law of intestacy will then determine how the deceased’s estate or assets are distributed. This includes any bank accounts, property, shares and other assets owned at the time of death.

Before any assets of the deceased can be dealt with, an application for a Grant of Representation known as a Grant of Letters of Administration (without a Will) will need to be made to the Supreme Court of Victoria so that the estate assets can be dealt with. Obtaining a Grant of Representation will formally appoint the applicant as Administrator/s of the Estate, the person who can deal with the deceased’s assets.

The Administration and Probate Act 1958 (Vic) sets out who can apply to be the administrator and make the application for the grant. Generally, the administrator must be the living spouse of the deceased. If the deceased had no spouse, the right to apply is with the children of the deceased who are over 18 years old.

What Happens if someone dies without a Will and does not have a spouse or children

If the deceased did not have a spouse and does not have any children, in usual circumstances, a surviving parent/parents would act as administrator. Otherwise, it might be a sibling or siblings that apply to the Court.

The general hierarchy of eligible persons able to apply to act as administrator is as follows:

1. Spouse or partner;
2. Children of the deceased
3. Parents of the deceased;
4. Siblings of the deceased.

Everyone’s family circumstances are different. If the deceased does not have any living relatives, such as grandparents, cousins, aunts or uncles, nieces or nephews, the deceased’s estate transfers to the Crown, being the state government, and generally State Trustees Victoria would be appointed as administrator of the Estate.

It is crucial to get legal advice to determine who is eligible to make the application to become the Administrator.

What happens to a deceased’s assets if they die intestate or die without leaving a Will?

The assets of a deceased estate where no Will was left, must be distributed in accordance with law. Generally, distribution of the estate would be as follows:

1. If the deceased had a spouse and no children from a previous relationship, the spouse would be entitled to the estate.
2. If the deceased had a spouse but also had children from a previous relationship, and the value of the estate assets are over the prescribed limit, both the spouse and deceased’s children would be entitled to a share in the estate.

Complexities arise where the deceased had children who died before them, leaving children of their own, or grandchildren of the deceased. In situations like this, the grandchildren whose parents have deceased are then entitled to their parent’s share of the estate.

3. If the deceased had no spouse, children of the deceased are entitled to an equal share in the estate. Again, if any children have predeceased, then their children would be entitled to their parent’s share.
4. If the deceased had no spouse or children, the estate would then go to any living parents of the deceased.
5. If there are no living parents, the siblings of the deceased would then become entitled to the estate.
6. If the deceased had no spouse, children or living parents or siblings, any nieces or nephews would be entitled.
7. In the event that there are no living relatives, the estate assets would then vest with the Crown or State government, however this is unusual.

Ensuring that the Administrator understands the Administration and Probate Act 1958 (Vic) particularly in relation to who is entitled to a share of the deceased’s estate is critical. Obtaining legal advice will assist with protecting you as the Administrator.

What are your duties as an Administrator of a Deceased Estate?

If you are appointed Administrator for the Estate, you have the same legal obligations that an Executor of a Will has. You are responsible for firstly securing the deceased’s assets and then managing them and finalising the estate of a deceased person according to the Administration and Probate Act 1958 (Vic) and above hierarchy.

Although this sounds straightforward, the process involves complex legal and procedural requirements. As there is no Will setting out how distribution of the Estate is to be made, there is significant responsibility placed on you as Administrator to ensure that the Estate is distributed to the correct beneficiaries in order of their eligibility in accordance with the law. This can get extremely complex particularly with blended families.

What are the risks to you as Administrator?

One of the most significant risks of administering a deceased estate is personal liability. Administrators have a legal duty to act in the best interests of the estate and its beneficiaries. If a mistake is made during the administration process, they may be held personally responsible. This means that creditors or beneficiaries could bring legal action against you personally and you could be forced to pay for any loss incurred to the estate, creditor or beneficiary.

Examples of situations where an Administrator may face personal liability are:

• Distributing assets before paying creditors;
• Failing to identify all debts owed by the estate or creditors of the estate;
• Making errors when managing estate funds;
• Distributing assets to the wrong beneficiaries;
• Distributing assets too early during the administration of the Estate.

What should you do to protect yourself as Administrator?

To protect yourself as Administrator of the Estate, it is crucial that you obtain legal advice. Wollerman Shacklock Lawyers assists with all aspects of Estate Administration and can assist in complex matters where the deceased died intestate or without a Will.

We provide legal advice to you on your specific family situation in accordance with the Administration and Probate Act 1958 (Vic) so that you can be sure you are administering the estate correctly and that you are protected against personal liability.

We assist in the whole estate administration process including;

• Identifying who is eligible to make application to the Supreme Court to be the Administrator;
• Identifying estate assets and liabilities;
• Preparing and lodging letter of administration applications;
• Advising administrators on their legal duties;
• Managing creditor claims;
• Providing legal advice on the best way to administer the Estate in accordance with laws and timelines to minimise potential claims against the Estate;
• Preparing estate accounts;
• Ensuring lawful distribution of assets;
• Publishing appropriate notices to protect the Administrator.

We provide guidance to you at every step on along the way so that you can undertake your role as Administrator confidently.

If you need assistance, contact us today on 03 9707 1155 or admin@wslegal.com.au.