What happens when a family member dies without a will?

Published 09 Apr 2020

When a family member passes away – whether unexpectedly or not – they may leave behind a complicated legal proceeding if they do not have a will in place.

People who die but have no wills on file are considered intestate, according to The Public Trustee Queensland. In such cases, the Succession Act of 1981 is quite clear on how assets are to be distributed. Individuals who do not assign an administrator for their estates will typically go to the Public Trustee.

Where do assets go?

As laid out in the Succession Act, intestate assets are distributed first to next of kin, which could mean that person's spouse or partner, or their children or grandchildren.

If no such people exist or are still living, the assets go to – in order – parents, siblings, children of siblings, grandparents, aunts or uncles and first cousins. It's important to note that neither in-laws nor step parents are considered in this "next of kin" group, nor are any relatives more remote than first cousins.

Recent changes

While these proceedings are still governed by a decades-old law, some aspects of it were updated more recently, according to Victoria Legal Aid. As of late 2017, all of an estate will go to the deceased's partner (including de facto partners who lived "as a couple on a genuine domestic basis" for at least two years, including people in same-sex relationships). However, if the deceased left behind children from a previous relationship, they would receive some of the assets as well – but only if the estate still has at least $500,000 remaining after funeral expenses and debts have been taken care of.

The Australian government will not receive any of the assets unless the deceased has no living relatives in the categories mentioned above. These rules are hard and fast, and unless there is legal proof of the deceased's wishes to the contrary, they will apply uniformly to anyone who passes away without a legal will. With all this in mind, it's vital for people who control even a relatively limited amount of assets to create a will.

If you need to know more about contesting wills or otherwise figuring out inheritances, please do not hesitate to contact the professionals at Gerard Malouf & Partners. We can walk you through everything you need to know, so get in touch today.

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