What to do if Someone Dies Without a Will

What to do if Someone Dies Without a Will

If someone you know dies without a Will, it means they have died “intestate”. Someone can die intestate because:

  • they haven’t made a Will and formally recorded how they want their assets to be divided;
  • they have inadvertently revoked their Will by getting married after they made the will;
  • they didn’t have capacity to make the Will;
  • they have lost the Will and there is no copy; or
  • all of the beneficiaries in the Will have already died.

When any of these things happen, the laws of intestacy determine how the estate will be divided. Each state in Australia has different legislation which dictate who receives the deceased person’s assets.

There are a lot of myths concerning dying without a will or dying intestate. For example:

  • Myth: If you die without a Will, the Government gets everything.
    • Depending on what state the deceased person lived in and what their family circumstances are, then there is a list of people who are legislated to receive the assets. For example, if the deceased person died in the ACT or NSW without a Will with no partner or children then their assets would go to their parents, and if they are no longer alive, then to their siblings (and so on – as determined by the relevant legislation). The State (the relevant state government) only receive the assets if there is no entitled person that is related to the deceased person.
  • Myth: If you die without a Will then you have to go and see the Public Trustee or Government agency?
    • Any lawyer can assist you in dealing with someone’s estate if they have died without a Will.
  • Myth: All of the assets will go the spouse of the deceased person.
    • Not necessarily. For example, in the ACT if the deceased person has a child as well as a spouse, there is a legislated formula that splits up the assets between the spouse and children.

So what happens now?

Looking after intestate matters can be complicated and we recommend that you come and meet with us to get assistance. If there is an asset which requires either a formal Grant of Probate or a Grant of Letters of Administration before it can be accessed, then we can help you with this process. We can also tell you if you need to get one of those Grants, and if you don’t, what you do need to do. These “Grants” are applications to the Supreme Court in the relative state, to give you authority to deal with the assets of the deceased person.

What is the difference between a Grant of Probate and a Grant of Letters of Administration?

A “Grant of Probate” is an application made when there is a valid Will and proves that the Will is in fact the last will and the resulting court document gives the appointed Executor the authority to deal with the deceased person’s assets.

When someone dies intestate, the application is called a “Grant of Letters of Administration”, which is an application to the court to appoint an “Administrator” of the estate and similarly to Probate, the resulting court document gives the Administrator the authority to deal with the relevant assets. An “Administrator” of an estate has the same role that an “Executor” of an estate would. The Administrator is usually the person with the greatest entitlement to the estate in accordance with legislation, whose job is to then distribute the estate in accordance with the laws of intestacy. Similarly, if there is a Will but the appointed executors have died or cannot act, then a Grant of Letters of Administration with a copy of the will is applied for.

The steps involved in both obtaining a Grant of Probate or a Grant of Letters of Administration can be complicated. The team at Meyer Vandenberg has extensive experience in dealing with all aspects of applying for probate, letters of administration and administering estates and we recommend you come and see us so that we can assist you by taking on the burden of dealing with your loved one’s estate.