Dying Without A Will: Changes to Intestacy Laws

by | Oct 23, 2018

Intestacy law provides a formula for the division of an estate when a person has died without leaving a valid Will.

On 1st November 2017, the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 came into effect and have made significant changes to Intestacy Law. The changes apply to the estate of any person who dies after this date. A key feature of the amendments are revised formulas for the division of estates, which address with greater accuracy the complexities of relationships in modern families.

To help make sense of the current law, recent changes and how this might affect you, a brief summary of the current law is outlined below.
 

Current law

  1. Surviving partner and no children
  2. Where an individual with a partner and no children has died without a Will, the partner is entitled to the whole of the deceased estate. This provision has not been altered by the recent statutory changes.
     

  3. Surviving partner and children from that relationship
  4. The surviving partner is now entitled to the whole estate.

    Prior to the amendments, if the deceased had a partner and children and the value of the estate did not exceed $100,000, the partner was entitled to the entire estate. Where the value of the estate exceeded $100,000, the partner was entitled to the first $100,000 of the estate, plus all of the deceased’s personal chattels, plus a third of the remaining estate. Any children were entitled to the remaining two-thirds of the estate.

    This has been amended as where children were entitled to two-thirds of the estate they could potentially liquidate their entitlement and force the sale of property. This meant the surviving partner could be left in a difficult situation, facing unexpected and sudden financial distress. The change to this form of division is simpler and allows the surviving partner has much greater financial security and stability.
     

  5. Surviving partner and children from a different relationship
  6. This scenario goes one of two ways and is dictated by the size of the estate.

    • If the residual estate is not worth more than $451,909.00 (the current statutory legacy) then the surviving partner is entitled to the whole of the estate including all personal chattels.
    • If the residual estate is worth more than $451,909.00 then the surviving partner is entitled to the deceased personal chattels, the first $451,909.00 of the estate, interest on this amount assessed from the date of death to the date the legacy is paid, and a half share of the remaining estate. Any children are entitled to equal shares (if more than one child) to the remaining half share of the residual estate.
  7. More than one surviving partner and no children
  8. Where a deceased leaves more than one partner but no children, the surviving partners are entitled to a share of the estate divided either by a distribution agreement, a distribution order or in equal shares.
     

  9. Surviving children but no partner
  10. In this scenario, the estate is to be shared in equal portions among any children the deceased had. If there are multiple children and one has pre-deceased the deceased, their share is to be left in equal parts to any of their children (the deceased’s grandchildren). If there are no grandchildren then the pre-deceased’s share gets divided among the remaining child/ren.
     

  11. Limited next of kin searches
  12. Another important change is a new limitation on how far a next of kin search will extend when a search for beneficiaries to an intestate estate is required. The baseline now stops at cousins, the rationale being that next of kin inquiries are time-consuming, expensive and are applied successfully only rarely. If no relatives beyond cousins are entitled to the estate, then the estate passes to the Crown (Government).

 

Organising your Will

Intestacy law makes every attempt to fairly distribute your estate. However, these laws cannot entirely account for the nuances in our relationships and do not allow you to pass on valued items to specified friends and family. It also means you have no control over who benefits from your estate, in what proportions, or who distributes it. The cost of administering an estate may be expensive, and can lead to disputes regarding who the next of kin is.

When you have a valid Will it means your assets will be distributed according to your wishes and reflects the relationships you valued in your lifetime. It leads to far fewer disputes, is both time and cost efficient, and provides you with peace of mind. If you need help with writing you Will today, call us on 03 9480 1155 for further information or to make an appointment.

Grant Mackenzie

Grant Mackenzie

Grant has been a partner at Phillips & Wilkins since 1990 having joined the firm in 1983. He is a member of the Law Institute of Victoria Elder Law Committee.