Dealing with the deceased’s property: Wills, “intestacy”, and small estates
Distributing the property
Once you’ve identified all the property that the deceased owned, have gathered it in, and have also dealt with any debts, taxes and legal claims the deceased might have been responsible for, you can then distribute the property to the people who are entitled to it. You’ll follow the instructions for this in the deceased’s will or, if they didn’t leave a will, you’ll follow the special legal rules that exist for these situations (called “intestacy”).
Distributing the property under a will
The executor distributes the deceased’s property to the beneficiaries according to the directions in the will.
Who gets the property if there’s no will?
The law sets out an order of priority for who gets the deceased’s property if he or she didn’t leave a will, and in what proportions. All those people are family members.
The basic order of priority is:
- the spouse, civil union partner or de facto partner, then
- children (regardless of whether the parents were married)
- the deceased’s parents
- brothers and sisters
- uncles and aunts.
Note: A de facto partner will usually only be entitled under the laws of intestacy if the relationship was for three years or longer – but there may be an exception if the de facto partner has made a substantial contribution to the relationship or there is a child of the relationship.
Here are some common examples of how the property is distributed under the rules of intestacy:
Administration Act 1969, ss 77, 82A; Administration (Prescribed Amounts) Regulations 2009, reg 5
- If there’s a spouse or partner, and there are also children, the spouse/partner takes:
- all the deceased’s personal possessions, including cars, furniture, appliances, jewellery and so on (basically everything other than land, buildings and money), plus
- a set dollar amount, which is currently $155,000, plus
- one third of the rest of the deceased’s property.
The children take the other two thirds of the rest of the property.
- If there’s no spouse or partner, the children take everything in equal shares.
- If there’s no spouse or partner, and no children, the deceased’s parents will take everything.
- If there’s no spouse/partner, children or parents, the deceased’s brothers and sisters take everything in equal shares.
Note: If there’s a Family Court Separation Order in effect (see the chapter “Relationships and break-ups”), the surviving spouse or civil union partner doesn’t have any right to the property under the laws of intestacy. However, if the couple were living apart but there was no separation order, their rights under the laws of intestacy are the same as if they’d still been living together.
Administration Act 1969, s 77A; Family Proceedings Act 1980, s 26
If a person dies without any of the specified list of family members surviving, their property may pass to the government.
Can someone challenge how the property is distributed when there’s no will?
Yes. People have the same rights under the Family Protection Act 1955, the Law Reform (Testamentary Promises) Act 1949 and the Property (Relationships) Act 1976 as they have to contest the distribution of an estate under a will (see the chapter “Wills”, under “Challenges to your will after you die”).
How long will it take for the estate to be distributed to the beneficiaries?
As a general rule, most estates should be able to be finalised and distributed within six months after the grant of administration. However, this is very much dependent on the type of assets in the estate, any legal complexities, the terms of the will, and whether anyone challenges the will.
If the assets are all in cash, or can be turned into cash quickly, and there are a small number of beneficiaries and all liabilities have been identified and are able to be paid from available funds, then it may be possible to make interim payments before the estate is completely finalised. If the terms of the will are more complicated, it may not be possible to pay any of the beneficiaries until all the assets have been gathered in.
If there are overseas assets in the estate, these may take longer to deal with because the procedure regarding administration in other countries can be complex.
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