Intestacy – Dying without a Will

We looked briefly at intestacy earlier – an intestate is a person who died without a will. Alternatively, it could be that they made a will, but the will is invalid.  Or maybe they gave a gift in their will but the gift did not take effect – so it is still sitting there with nowhere to go.  There are rules that govern intestacy, set out in the Intestacy Act 2010.  What this does is divide the estate up and give it to certain people (beneficiaries) according to a list.  Effectively the government has made a will for everyone who hasn’t made their own.  It lists who your estate will go to, in order of priority.  If you have a look below you can see the list – go down the list until you get to the facts of your situation and that is the person/s who will get your estate.

(See Legal Aid Commission Fact Sheet: https://www.legalaid.tas.gov.au/factsheets/estates/)

The statutory list for distribution of the estate is as follows:

• if the deceased person leaves a spouse and no children, the whole estate goes to the spouse;
• if the deceased person leaves a spouse and children and the children are also children of the spouse, the spouse is entitled to the whole of the intestate estate;
• if the deceased leaves a spouse and any children who are not children of the spouse, the spouse is entitled to the deceased’s personal effects, a statutory legacy of $350,000 (adjusted for CPI using a formula) and one-half of the remainder (if any) of the intestate estate;
• if the deceased leaves more than one spouse, but no children, the spouses are entitled to the whole of the estate in shares as determined by the Intestacy Act 2010;
• if the deceased leaves more than one spouse and children who are children of one or more of the surviving spouses, the surviving spouses are entitled to the whole of the intestate estate in shares determined by the Intestacy Act 2010;
• if the deceased leaves more than one spouse and any children who are not children of the surviving spouse, the spouses are entitled to share the intestate’s personal effects, each spouse is entitled to a statutory legacy of $350,000 (adjusted for CPI using a formula) and the spouses are entitled to share one-half of the remainder of the intestate estate (if any);
• if the deceased leaves children only, the estate goes to the children equally (or grandchildren if the child or children are deceased);
• if the deceased has no spouse or children, the estate goes to the deceased’s living parent or parents;
• if the deceased has no spouse, children or parents, the estate goes to other relatives in the following order: first, brothers and sisters, or children of a deceased brother or sister; second, grandparent/s; third, uncles and aunts (or their children if the uncle or aunt has died before the deceased).  If there is more than one person in the category, they will take in equal shares;
• if the deceased has no living relatives who are entitled to the intestate estate, the estate goes to the State Government; however, the Government may pay some money to dependants if it is established that the deceased had any.

More than one spouse: de facto partners and other relationships

A ‘spouse’ under the Act doesn’t just mean a wife or husband. It can refer to a significant relationship, or a registered personal relationship, which can include a carer. Significant relationships are relationships such as a de facto relationship. So, a person could conceivably be married and in a significant relationship at the same time. Section 6 gives three types of relationship that qualify as ‘spouse’ for the purposes of the Act. These are where the person was:

• Married to the intestate immediately before the intestate’s death;
• Party to a registered personal relationship within the meaning of the Relationships Act 2003; or
• Immediately before the intestate’s death was a party to a significant relationship within the meaning of the Relationships Act 2003 of at least two years duration, or had resulted in the birth of a child.

If two or more of these relationships exist, then a different set of rules to ‘one surviving spouse’ applies. The whole of the intestate estate will be divided between the surviving spouses according to rules contained in Part 2, Division 3, sections 23 – 27 of the Intestacy Act 2010. These rules are:

• Section 25: each spouse is entitled to a share of personal effects, a statutory legacy, and a share in one-half of the remaining (if any) estate
• Section 26: such entitlements can be determined by one of three means: a written agreement between the spouses, a court order or an equal division of property made by a personal representative of the intestate. 

The court can make a distribution order on terms it deems ‘just and equitable’, including allocating the whole of the property to one spouse to the exclusion of other/s (s27).