The Evolution of Intestacy Laws

The best way to protect your estate is by having in place a valid will as it allows you to directly address your specific relationships and wishes.

Intestacy arises when a person dies without leaving a valid will. A strict legislative formula dictates how an intestate estate must be distributed amongst family members. Without a valid will, the estate of the deceased is distributed in accordance with the provisions of the Administration and Probate Act 1958 (the Act).

The Act provides that, if a person dies intestate leaving a de facto partner or spouse (partner) and children, any surviving partner is entitled to the personal chattels, the first $100,000 of the estate and one-third of the balance of the estate. The remainder of the estate will then be distributed equally to the children. If the deceased has no surviving children, the whole of the estate will be passed to the partner or spouse.

Where the deceased leaves no surviving partner or children, their estate passes to the next of kin, starting with parents, then siblings, grandparents, aunts and uncles and onwards down the line. If there is no surviving kin, the estate of the deceased passes to and belongs to the Crown.

As at 1 November 2017, the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 came into effect and overhauled the Act. The intention of the changes is to better reflect the way families operate in the 21st century, including by improving the financial and social stability of surviving partners, while still accommodating the complexities of modern families.

The new laws under the Act now provide for the following:

  1. Where the deceased leaves a partner but no surviving children, the whole of their estate will be passed to their surviving partner.
  2. Where the deceased leaves a partner and children the whole of their estate will be passed to their surviving partner.
  3. Where the deceased leaves a partner and children from a previous relationship, the partner is entitled to all personal chattels, the first $451,909 and one half of the balance, with the remaining 50% divided equally amongst the children.
  4. Where the deceased does not leave a partner but leaves children, the whole of the estate will be divided between the children of the deceased equally and if a child of the deceased has passed away that child’s share shall be distributed between their children equally (grandchildren of the deceased).
  5. In the event that a deceased leaves no surviving partner or children, their estate passes to the next of kin as outlined above in the earlier Act, but with the estate passing to the Crown if there is no next of kin after first cousins.
  6. In the case that a deceased leaves multiple partners the Act provides for this in some complexity.

It is important to understand how your assets will be distributed once you pass, especially if you have a complex family structure. The best way to protect your estate is by having in place a valid will as it allows you to directly address your specific relationships and wishes.

If you would like additional information on intestacy or wills or would like to discuss generally your will, succession plans or personal circumstances, please contact Lanyon Partners Legal.