Will & Probate: Who will inherit assets if there is no will?

In Australia, whether a person has a Will directly impacts the distribution of their assets after their death. If there is no will, the law will determine who is entitled to inherit these assets. 

This article primarily refers to the laws in Victoria. Please be noted that inheritance laws may vary in different states and territories. 

Have you confirmed the absence of a Will?

First, since a Will directly determines the distribution of assets, it is crucial to ascertain whether the deceased had made a will. Some individuals may not inform their family about their will, so the next of kin will need to take the initiative to find out. 

If no will is found, assets may be distributed according to the laws of intestacy, which may not align with the deceased’s true intentions and could lead to disputes over the estate. You can find a will by the following methods: 

• If the deceased had a lawyer, they might have a copy of the will. You can contact the law firm, provide relevant information about the deceased, and ask the firm to verify the existence of a will. 
• You can inquire with the State Trustees to see if a will has been registered. 

Who inherits without a Will?

If there is no will, the inheritance of assets follows the intestacy laws of Australia. The general order of inheritance is as follows: 

Spouse and Children: 

• If the deceased has a spouse but no children, all assets are distributed to the spouse. 
• If the deceased has both a spouse and children, the spouse inherits a portion of the assets, and the children inherit the remainder. 
• If the deceased has no spouse but has children, the children inherit all the assets. 
• De facto relationships have the same inheritance rights as legal marriages. A de facto partner is considered a spouse and has the same inheritance rights. 
• A remarried spouse also has the right to inherit the deceased’s estate if there is no will. 

Parents:

• If there are no spouse and children, the estate is inherited by the deceased’s parents. The inheritance is usually split equally between them, although this can vary by state. 

Siblings: 

• If there are no parents, the estate is inherited by the deceased’s siblings. The inheritance is split equally among them. If a sibling has already passed away, their children (the deceased’s nieces and nephews) will inherit in their place. 

Grandparents: 

• If there are no siblings, the estate is inherited by the deceased’s grandparents, split equally between them. 

Uncles, Aunties and Cousins: 

• If there are no grandparents, the estate is inherited by the deceased’s uncles, aunts or cousins, split equally among them. 

No Heirs: 

• If the deceased has no family as mentioned above, the estate may become the property of the government. Different states and territories have slightly different procedures for handling estates without heirs, but generally, the assets go to the state or territory’s treasury. 

Next steps after confirming the absence of a Will: 

1. The immediate family must apply to the Supreme Court for a Letter of Administration
   
   Usually, the deceased’s spouse, de facto partner or closest family member (referred to as the next of kin) applies for this order, authorising the administrator to manage the deceased’s estate. 
   
   
2. Publish a Notice of Intention 
   
   Before submitting the application, the applicant must publish a notice of intention to apply in the probate online advertisement system at least 15 days in advance.

   This is to notify the public and allow anyone who believes they have a right to the inheritance to raise an objection. If objection arise, the family must address them, and the court will make a judgement. 

3. Liquidate the Estate
   
   In most situations, the court appoints the nearest next of kin as the estate administrator. The administrator needs to follow these steps to liquidate the estate: 
   • evaluate and determine the current market value of all assets.
   • use the estate to pay off the deceased’s debts and related expenses, such as funeral and legal fees.
   • gather all assets into the estate account for distribution. 
4. Distribute the Estate 
   
   According to the intestacy laws, the administrator must follow these steps to distribute the estate to the lawful heirs: 

1. • Determine all lawful heirs according to the order of intestacy. 
   • Distribute the estate reasonably according to the heir’s legal rights. If there are debts, they must be settled first, then the remaining assets are distributed to the heirs. 
   • Submit an estate distribution report to the Supreme Court to ensure all procedures are legal and complicant.