Dying intestate – when there is no will left or an invalid one

By B Stead

If a deceased person has not left a will, or if no document appearing to be a will can be found, they are said to have died intestate.  Here is an outline on how succession law rules operate to distribute an intestate person’s property; who is entitled to inherit.

The meaning of ‘intestate’

‘Intestate’ is a defined term in all state and territory legislation dealing with intestacy.  It is defined with similar wording throughout, such as that in section 102 of the Succession Act 2006 (NSW):

An intestate is someone who has died and either not left a will or left one which does not dispose effectively by the will all or part of their property.
For other jurisdictions look up the links to the state/territory legislation containing the  intestacy rules here.  The statutes listed under ‘Intestacy’ contain legislative rules when no will has been left.

Statutory order of entitlement – who can take?

The legal rules in the legislation sets out an order of entitlement as to who can take from the deceased estate.  The statutory order is based along kinship or blood family lines.  Spouses, de facto spouses, partners or registered partners and those in a domestic relationship  persons, (the terminology can vary slightly) and issue (see what the legal term “issue” means here), receive highest priority under the rules.

The situation where a will does not completely dispose of a person’s property can arise for a number of reasons too many and varied to mention here.  Only property which is owned personally, in an individual name can be disposed of by will.  Read more about what can and can’t be disposed of by will here.

Administering a person’s estate when no will was left

Practically it means that the statutory rules of intestacy will apply to determine how the property should be distributed.

The process begins with making a formal application to the Probate Court (a division of the Supreme Court in each state and territory) for what is termed Letters of Administration so as to obtain legal authority to deal with the deceased’s estate.  Advice should be sought from a solicitor.  Information and forms can be viewed on the websites of the Probate Courts’ sites, click here for links.

What is the residuary estate of a person dying without a will (intestate)?

The residuary estate or residue is what is left for distribution after all debts of the estate have been paid.

A will was left but not all property effectively disposed of – partial intestacy

A partial intestacy can arise when for some reason, a will does not properly dispose of a part of the estate property according to law. The property affected then becomes part of the residue of the estate, and distributed according to the statutory rules on intestacy.

Often this situation does not arise until after probate has been granted and administration of the estate has commenced.  Legal advice should be sought.

BHS Legal
25 April 2014

Important notice: This article is intended for general interest and information only. It is not legal advice, nor should it be used as a substitute for legal advice. Always consult a legal practitioner and/or other professional for specialist advice specific to your needs and circumstances, and rely on that.

© BHS Legal

Return to top

Header image: © 2013 B Stead Sturt’s Desert Pea, Swainsona formosa, family: Fabaceae, the floral emblem of South Australia.  Indigenous to Australia. Photographed at the Australian Arid Lands Botanic Gardens, Port Augusta, http://www.australian-aridlands-botanic-garden.org/.