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Intestacy Rules Solicitors - No Will - Australia

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The term intestacy relates to a person dying without a will as a result of which the deceased is said to be intestate. This can result in difficulties for people who assumed that they would benefit from the passing of the deceased and serves to totally cut out most non family members except in so far as they may have established some rights to make a claim against the estate as dependants of the deceased at the time of death or as a de facto partner.

Intestate Law

In the event of a person dying without a will in Australia then the intestacy rules are applied and this is also the situation where there is a will that is deemed to be invalid unless there is an earlier will that takes precedence. The intestacy rules set out a regime for distribution of assets and dictate who can claim dependant on the degree of family relationship and also dependant on the value of the assets. The intestacy rule are statutory which means that they have been passed into law and whilst they may be discriminatory against certain family relationships dependant on precedence they are non the less legally enforceable. Without a will the intestacy rules come into play and notwithstanding promises made by the deceased during their lifetime to leave certain potential beneficiaries a legacy, if that promise is not repeated in writing as evidenced in a legally enforceable valid will then the potential for any such gift will lapse on death. Anyone who wants to have their assets distributed after death, according to their wishes, must leave a valid and legally enforceable will failing which the state will determine the ultimate destination of their assets by applying the intestacy rules. Where there are no qualifying relatives or dependants, under statute, the assets of the deceased will pass to Government.

Valid Will

To be legally enforceable an Australian will must :-

  • be made by a person over the age of 18 years
  • be made willingly without undue influence from another person
  • be made by a person of sound mind and full awareness
  • be signed and witnessed in accordance with Australian law

Partial Intestacy

It is also possible to have a partial intestacy where there is a valid will but some of the deceased's assets are not distributed by that will and in this case the intestacy rules are applied but only to those undistributed assets with the potential for the Government to claim if there are no qualifying relatives.

Jointly Owned Assets

Even in the event of there being no valid will any assets held jointly will normally pass to the joint owner without the application of the intestacy rules. This usually applies to property jointly held by husband and wife and often to properly jointly held by other co-owners who are not spouses.

Intestate Administration

In all cases of intestacy the state allows for the appointment of an administrator to administrate the estate of the deceased in the absence of the appointment of an executor under a will. The person applying for letters of administration will usually be one or more of the beneficiaries under the intestacy rules.

Solicitors Legal Advice

Our solicitors deal with matters relating to disputing or challenging wills and contested probate issues. The law varies dependant on the domicile of the deceased, where the will was executed and the location of the assets and as a result there are often different statutes, rules, protocols, practices and time limits applicable to distribution of the estate. Our qualified solicitors operate nationwide and can assist you in every Australian location. If you would like free initial advice with no obligation just complete the contact form and a specialist solicitor will phone you immediately.

HELPLINE: 1800 455 886