Who is entitled to a share of the estate under the rules of intestacy?

Written by Terry Johansson | 13th September 2013

Each State of Australia has different rules that work out how a person’s assets are to be distributed if they die without a Will.

However, the rules are similar, and generally work like this:

  1. if the deceased died, leaving a spouse but no children, everything goes to the spouse;
  2. if the deceased died with no spouse but had children, everything goes to the children equally;
  3. if there is both a spouse and children, the assets are divided between all of them, with differing rules applying in various States;
  4. if there are no children or spouses, the assets generally pass to whichever of the following categories apply:

(a)      if there are parents, between them;
(b)     then between brothers and sisters
(c)      then between nephews and nieces if their parent predeceased the deceased;
(d)     then between grandparents;
(e)     then between uncles and aunts;
(f)       then sometimes between different levels of other relatives, in different combinations.

If there are no persons in any of the above categories, usually the estate will go to the Crown.

Usually the de facto spouse of the deceased can receive a share of the Estate as if they had been married;

In some States, if a person who would otherwise be in a category but has died before the deceased, their children may receive their share of the Estate instead.

You should obtain legal advice from a solicitor if you believe that a Will may be invalid as in some cases, you may receive a larger share of the Estate on intestacy

Ask for details of the rules applicable to you and to the deceased, in the relevant State, download the relevant guide: VICNSWQLDWASA.

The above links to each state are a guide only and is designed to give you no more than a general idea of the rules of intestacy. The illustrations are not legal information or advice, and you should always obtain advice from a solicitor as to your personal circumstances.  Ask one of our sponsors for details of the rules applicable to you and to the deceased.

Click here for more information.

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