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Understanding Estate Distribution in Australia: What Happens When You Pass Without a Will

Updated: Mar 16

In life, uncertainties abound, including the inevitability of death. In Australia, the absence of a will can lead to complexities in estate distribution. Unlike some countries, assets aren't automatically distributed. Instead, they're almost immediately frozen, prompting a meticulous process.

Who Inherits Your Estate Without a Will?

If you die without a valid will, then an application for a Grant of Letters of Administration may be made to the Supreme Court. Usually, it is the deceased’s next of kin who has to apply for this grant. For example, the spouse, domestic partner or a child of the deceased.

  1. If the person died and left behind a partner, then all of the estate goes to them.

  2. If there were children but no partner, the estate is distributed to the children equally.

  3. If the person had no partner or children, then all the estate goes to relatives in this order:

    • Parents

    • Siblings

    • Grandparents

    • Aunts and uncles

    • Cousins.

The estate does not pass to the government unless there are no living relatives.

If you think you might benefit from a will, it is always best to get independent legal advice from a private lawyer.

It can create a whole lot of administrative problems when retrieving the assets for distribution.

What happens to your property if you die without a will?

How the property is distributed will also depends on the title of the property ownership. A property can be registered under 2 forms of ownerships.

- Joint Tenancy:

Property ownership in which each party on the title to the property holds an individual interest in the property. An example of a joint tenancy is the ownership over a house by a married couple. In this situation, joint tenancy comes with the ''right of survivorship''. That means that when one of the joint tenants dies, the interest of the deceased joint tenant automatically passes to the surviving joint tenant or tenants and does not form part of the estate of the deceased.

- Tenancy in Common:

Do not automatically receive the right of survivorship. If one of the tenants dies, their interest in the property will be distributed according to their Will. If there is no Will, the rules of intestacy will be applied to divide the deceased person's portion of the property.

Always seek formal legal advice

This is for general information only and is not formal legal advice. It does not take into consideration your personal situation and circumstances. There are pros and cons to each form of ownership which may or may not apply to you. Always seek proper legal advice before purchasing any property to determine which works best in your situation.



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