Intestacy: Dying Without A Will

Contributed by Emma Bragg, Tetlow Legal and current to March 2022. Based on the contribution of Charles Rowland.

How is the Estate Divided?

The basic principle of intestacy is that when a person dies without a will, or leaving a will which disposes of only part of their estate, then the estate, or that part of it which is undisposed of by the will, is distributed to the next of kin according to rules laid down by statute (ss 44-49N Administration and Probate Act). If there is no next of kin then the estate passes to the Territory.

The ACT statutory order follows. Note that the order must be read subject to the comments in Commentary on the Intestacy Rules.

First: Partner and No Children

If the deceased leaves a partner and no children; the partner is entitled to the whole of the intestate estate.

Section 45A provides that where the intestate is survived by both a legal spouse and an eligible partner, the partner share of the estate is divided according to the length of time the eligible partner lived with the deceased before their death. If the eligible partner lived with the deceased continuously for less than five years (immediately before their death) the eligible partner will be entitled to share the estate equally with the legal spouse. If the eligible partner lived with the deceased continuously for five years or more (immediately before their death) they will be entitled to the full estate.

Second: Partner and Children

If the deceased leaves a partner and children; the partner is entitled:

(i) if the Value of the intestate estate does not exceed $200,000, to the whole of the estate;

(ii) if the Value of the intestate estate exceeds $200,000 and the deceased leaves one child, to $200,000, interest on $200,000 from the date of death to the date of payment at 8 per cent and one half of the balance;

(iii) if the Value of the intestate estate exceeds $200,000 and the deceased leaves more than one child, to $200,000, interest on $200,000 from the date of death to the date of payment at 8 per cent and one third of the balance.

If the Value of the intestate estate exceeds $200,000 the children of the deceased are entitled to share equally the balance of the intestate estate remaining after the partner has been paid their share. Again, s 45A will mean the partner share may be split between legal spouse and eligible partner.

Third: Children (and Further Descendants)

If the deceased leaves children but no partner; the children are entitled to share equally the whole of the estate (descendants of predeceased children share in what their parent would have taken).

Fourth: Parents

If the deceased leaves no partner or children or further descendants, but leaves parents, then the parents are entitled to share equally the whole of the estate.

Fifth: Brothers and Sisters (and their Children)

If the deceased leaves no partner, children or parents, but leaves brothers and/or sisters (or descendants of predeceased brothers or sisters); the brothers and/or sisters are entitled to share equally the whole of the estate (descendants of predeceased brothers or sisters take what their parent would have taken).

Sixth: Grandparents

If the deceased leaves no partner, children, parents, brothers and sisters, but leaves grandparents; the grandparents are entitled to share equally the whole of the estate.

Seventh: Uncles and Aunts

If the deceased leaves no partner, children, parents, brothers, sisters or grandparents, but leaves uncles and/or aunts (or descendants of predeceased uncles or aunts), they are entitled to share equally the whole of the estate (descendants of predeceased uncles or aunts take what their parent would have taken).

Eighth: Territory may Benefit

If no-one satisfies this order of distribution, the estate passes to the Territory.

Commentary on the Intestacy Rules

Definition of Terms

"Children" includes adopted children. However, the word "children" does NOT include stepchildren or foster children. Stepchildren and foster children, therefore, do NOT share in an intestate estate of their step parent or foster parent.

"Eligible partner" (defined in s 44 Administration and Probate Act) means:

someone, other than the spouse, civil union partner or civil partner of the intestate, who--

(a) was the intestate's domestic partner when the intestate died; and

(b) either--

(i) had been the intestate's domestic partner continuously for 2 or more years when the intestate died; or

(ii) is the parent of the intestate's child, if the child was under 18 years old when the intestate died.

Domestic partner -- is defined in in s169(1) Legislation Act 2001 (ACT): "someone who lives with the person in a domestic partnership, and includes a reference to a spouse of the person". The ‘domestic partner’ is entitled to claim family provision and in certain circumstances is entitled on intestacy.

Domestic partnership -- is defined in s 169(2) Legislation Act 2001 (ACT): "the relationship between 2 people, whether of a different or the same sex, living together as a couple on a genuine domestic basis".

Value -- "Value" of the estate means net value (after payment of debts) and, where the deceased leaves a spouse, does not include personal chattels, which go to the spouse. Also, the estate does not include property held in joint tenancy. This property passes automatically to the surviving joint tenants.

Advancement

In some circumstances a gift by the deceased to any of his or her children within the period of five years immediately before his or her death must be brought into account in ascertaining the entitlement of the children or their direct descendants.

Partial Intestacy

The rules governing distribution of the property of a person who dies partially intestate are similar to those laid down for total intestacy: s 49D Administration and Probate Act.

Matrimonial Home - Special Provisions

The surviving partner is entitled to the intestate's interest in the matrimonial home: ss 49F - 49N Administration and Probate Act.

In the ACT, if the interest in the matrimonial home is worth more than the partner's interest in the interest according to the normal calculation, the partner is permitted to elect to take the partner's interest in the dwelling house, and does not have to account for the difference: see s 49G(1) "in or towards satisfaction".

If the dwelling house forms part of other assets of the deceased, for example a farm or shop building, the right of the partner to elect to take the deceased's interest in it is exercisable only with the permission of the court.

Examples of how an Intestate Estate will be Divided

Here are some examples of the application of the ACT statutory order: Bear in mind, though, that a successful application under the Family Provision Act (see Family member not adequately provided for) means the court can vary this order.

First example: An estate of less than $200,000, which does not include any interest in a dwelling house. Total value of the estate is $90,000.

Scenario		Intestacy rules result
(i)	The deceased left a widow and no children	The widow gets the whole estate.
(ii)	The deceased left a widow and three children	The widow gets the whole estate.
(iii)	The deceased, a widower, left three children.	Each child will get a third, i.e., $30,000 each.
(iv)	The deceased, a widower, had three children of whom two are living at his death and one has predeceased him leaving no children.	Each surviving child will get half, i.e. $45,000 each.
(v)	The deceased, a widower, had three children of whom two are living at his death and one has predeceased him. The predeceased child had two children who survived the deceased.	Each surviving child will get a third, i.e. $30,000 each, and each surviving child of the predeceased child will get a sixth, i.e. $15,000 each.
(vi)	The deceased left a widow and a second eligible partner with whom the deceased had been living for four years immediately before death, and no children.	Both eligible partners share the estate equally.
(vii)	The deceased left a widow and an eligible partner with whom the deceased had been living for six years immediately before death, and no children.	The eligible partner takes the whole estate.

Second example: An estate of more than $200,000, which does not include any interest in a matrimonial home. Total value of the estate is $380,000 including personal chattels valued at $20,000.

Scenario		Intestacy rules result
(i)	The deceased left an eligible partner and no children.	The eligible partner gets the whole estate.
(ii)	The deceased left an eligible partner and one child.	The eligible partner gets: the personal chattels, (i.e. $20,000) + $200,000 (+ interest thereon) + half of the balance, i.e. $80,000 (ignoring the interest). In sum, therefore (ignoring interest) the eligible partner gets $300,000 and the child gets $80,000.

Contesting an Intestate Estate

A close family member or person with a moral claim on the deceased can ask the court to order that provision for them be made out of the estate if the provision made for them is inadequate. This ground for challenging the estate is called Family Provision. For further information see Family Not Adequately Provided For.