Who inherits if someone dies without a will?
If a person dies without a will, the law sets out rules for how their estate is to be distributed. These are called the intestacy rules.
The intestacy rules require the deceased’s estate to be distributed as follows:
| If the deceased died leaving… | then... | |
| 1. | a spouse, civil union partner, or de facto partner*, but no children, no grandchildren and no parents | the spouse or partner receives everything. |
| 2. | a spouse, civil union partner, or de facto partner* and children or grandchildren | the spouse or partner receives all personal chattels, the first $121,500 of the estate and one-third of the remaining property; the rest goes to the children and grandchildren. |
| 3. | a spouse, civil union partner, or de facto partner*, and one or both parents, but no children or grandchildren | the spouse or partner receives all personal chattels, the first $121,500 of the estate and two-thirds of the remaining property; the rest goes to the parents. |
| 4. | children or grandchildren, but no spouse, civil union partner, or de facto partner | the children and/or grandchildren receive everything. |
| 5. | parents but no children or grandchildren or spouse, civil union partner, or de facto partner | the parents receive everything. |
| 6. | no parents, no children, no spouse, civil union partner, or de facto partner | brothers and sisters of the deceased (or their descendants) receive everything. |
*A de facto partner will only inherit if:
(a) the relationship was for three years or longer; or
(b) they made a substantial contribution to the relationship or there is a child of the relationship, and in either case serious injustice would result if they were not entitled to inherit.
The above is subject to the surviving spouse or partner electing Option B under section 61 of the Property (Relationships) Act 1976. If the spouse instead elects Option A, they will receive half of all relationship property, and the remainder of the estate will be distributed in accordance with the above rule that would have applied had the surviving spouse died immediately before the deceased. Read more about the choice of option under the Property (Relationships) Act here.
There is a further caveat as well: even if the deceased died without a will, people still have the same rights to make a claim against the estate as they would have had if the deceased had made a will. Any successful claim against the estate will be paid out first, and the remainder of the estate will then be distributed in accordance with the above rules.
What are letters of administration?
When a person dies without a will, it is called an intestacy or dying intestate. The closest relative to the deceased can apply to the High Court for letters of administration, which is the document that grants them the legal authority to administer the deceased’s estate. The person granted letters of administration is called the administrator. Once letters of administration are granted, the administrator is required to distribute the estate in the manner prescribed by legislation.
If the deceased died with a will, an application must usually be made for probate rather than a grant of letters of administration. Read about probate here.
When are letters of administration necessary?
It may not be necessary to apply to the Court for letters of administration if the estate is small. Provided that all of the following criteria are met, the estate can be distributed without the need to obtain a grant of letters of administration:
- the deceased either owned no land at all or they only owned land as joint tenants with someone else (ie it will be necessary to apply for probate if the deceased owned land in their sole name or as tenants in common with anyone else);
- the deceased owned no accounts with any one bank totalling more than $15,000 (eg if the deceased had accounts totalling $10,000 with bank A and accounts totalling $12,000 with bank B, that is fine);
- the deceased owned no shares in any one company worth more than $15,000;
- the deceased held no life insurance policies with any one insurer totalling more than $15,000; and
- the deceased owned no government stock or local authority stock worth more than $15,000.
If the above criteria are met, the bank, company director, or insurer can transfer the relevant property to the administrator without any need for letters of administration. The administrator will usually need to provide the organisation with a copy of the death certificate together with a letter confirming that neither probate nor letters of administration have been granted.
Who can apply for letters of administration?
Not everyone can apply for letters of administration. There is a hierarchy that applies:
- The person with the greatest right to apply is the surviving spouse or a de facto partner who stands to inherit under the intestacy rules.
- Next in the hierarchy are the children of the deceased (and if the children have all died, then the grandchildren of the deceased).
- Third in line to apply are the parents of the deceased.
- The hierarchy then continues in the following order:
- brothers and sisters of full or half blood, or, if none are alive, the children or grandchildren of any such brother or sister who has died during the lifetime of the deceased;
- grandparents;
- uncles and aunts of full or half blood, or failing them, the children or grandchildren of an uncle or aunt who has died during the lifetime of the deceased.
- brothers and sisters of full or half blood, or, if none are alive, the children or grandchildren of any such brother or sister who has died during the lifetime of the deceased;
In order to apply for letters of administration, you need either to be the highest person in the hierarchy, or to have obtained the written consent of every person that is higher than you in the hierarchy, or to serve the application on every person higher than you in the hierarchy who has not consented to you being appointed as administrator.
How to apply for letters of administration
Applying for letters of administration where the deceased died without a will is the equivalent of applying for probate where the deceased died leaving a will.
Obtaining letters of administration involves making an application to the High Court. The application needs to be supported by an affidavit (a sworn statement) and other documents, which must be in the form required by the High Court Rules. The applicant will usually engage a lawyer to make this application on behalf of the estate. If the application has been correctly made, the Court will issue the applicant with a document under seal of the Court known as the grant of letters of administration.
The administrator can then produce the grant of letters of administrator as proof of his or her right to deal with the deceased’s estate. For example, a bank will usually want to see a copy of the grant of letters of administration before allowing an administrator to withdraw funds from the deceased’s bank account.
