What Happens Without A Will

I have been living overseas for the past six years.

I have been informed that my father has passed away and that he died without any Will, what happens now?



If someone dies without a will, that is known to the law as an “Intestacy”.

Unfortunately, many Australians do not have a will and this can make it difficult for the rest of the family.


Any jointly owned property goes automatically to the surviving joint owner, the same applies to jointly owned bank accounts, investments and investment properties.


Assets that are in the deceased’s name only,  have to be dealt with and one has to work out who will administer the estate, and of course who gets what.


The first step is to have an administrator appointed by the Supreme Court, which is the equivalent of an executor when there is a Will. An executor receives a Grant of Probate, and an administrator receives Letters of Administration. An administrator must normally be a beneficiary, someone who will receive a share of the estate,  or the guardian of a beneficiary and if there is no suitable beneficiary available and willing, then the expense of using a Trustee company or the Public Trustee Will be incurred.


The benefit of having a Will is to avoid the extra expense, delays and complications, which occur if no Will is available. There are many cases where the deceased has made a Will, but no one knows where it is! One of the steps required to obtain Letters of Administration is to provide the Court with evidence of the searches and enquiries made. Apart from the obvious such as searching the home, advertisements must be placed in the lawyers’ journal, and in the local press.


If the deceased leaves a partner, married or de facto, hetero or same-sex, and no children, the partner gets the entire estate. To qualify as a de facto partner, the relationship must have been for at least two years and there must be a child or the relationship must be registered. If there is a child or children of the relationship, the partner still gets the entire estate.

If there is no surviving partner, but they have surviving children, those children share the estate.


The law provides a strict “family chain” of beneficiaries, each only being considered if there is no one in the preceding category. These are parents, brothers and sisters, including half-brothers and sisters and children of a deceased sibling, grandparents, aunts and uncles, with their children taking if an aunt or uncle does not survive the deceased.


If there is still nobody, it goes to the Crown, the state government.  The government gives consideration to claims by people who could be seen as having a moral claim. For example, two old friends, who although are not living together but have helped one another and seen one another constantly as they aged.


If you have any doubts about your Will or a family member who has died “Intestacy”, then you need to speak to a lawyer who is familiar with Estate Law.


Call Frank Boitano today for an appointment on 9630 0444 or email on fjb@bblawyers.com.au

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