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Intestate Estates In Canberra

A person is intestate when they pass on without leaving a valid will. In Canberra, somebody can die intestate because they failed to make a formal will that bequeaths their assets, or because their will is missing, incomplete or revoked, or because they were mentally incapable of making a will when they executed the document purporting to be their will. In these cases, the Administration and Probate Act 1929 dictates how the property of the estate is divided. This article defines intestacy and outlines some common misconceptions about intestate estates in Canberra.

When a testator makes a will, they will most commonly leave their assets to family members, close friends and even charitable institutions, but without a will intestacy law limits eligibility to inherit to a much narrower field of people. The law in Canberra is meant to provide a fair outcome for the family of the deceased in cases of intestacy. This article clarifies some common misconceptions about what happens if someone dies intestate in Canberra.

Misconceptions About Dying Intestate In Canberra

There are many misconceptions about what happens to a deceased estate if the deceased dies before making a will.

Misconception 1: The Government Takes Ownership Of Intestate Estates

One common assumption is that the government seizes everything from an intestate estate. On the contrary, the government is the very last resort when it comes to eligible beneficiaries of the estate. In Canberra, there is a short list of people who can receive a share of the estate, depending on the deceased’s circumstances. For instance, the wife, husband or de facto partner of the deceased inherits everything if the estate is worth less than spousal entitlement of $200,000.

Beyond that amount, the spouse receives the spousal portion (with annual interest if they have to wait for their entitlement) and shares the remainder with any children of the deceased. Where the deceased only has one child, the spouse and child share the remainder, whereas if there are multiple children then the partner only inherits a third of the remainder while the children share the remaining two-thirds. The children receive the whole estate in equal shares if the deceased died without a living spouse or de facto partner.

In the event that the deceased passes away without children or a surviving spouse, then the law in Canberra specifies that the next of kin will inherit the intestate estate. For a person without spouse or children, the next of kin is their parent. If neither parent is living, then the estate will be divided amongst the living siblings of the deceased. If there are no living siblings, then uncles and aunts, grandparents and cousins all come into the order of succession.

Misconception 2: You Can Only Obtain Probate If There Is A Will

Another misconception is that it is impossible to apply for a probate grant when the estate is intestate. A Grant of Probate is a document that proves a will and validates the appointment of an executor. However, the Supreme Court of the ACT can also issue a grant in the absence of a will. In that instance, the grant is called Letters of Administration. When an administrator obtains this grant, he or she has legal permission to take control of an intestate estate. The administrator will effectively perform the same role as an executor, but they act according to intestate law instead of the instructions contained in a will.

Misconception 3: You Cannot Be Intestate When You Have A Valid Will

Many testators have the misconception that they cannot be intestate if they have executed a will. On the contrary, it is still possible for someone who has made a will to be partially intestate if they fail to regularly update the terms of their will. A testator should review and revise their will to reflect changes in their ownership of property, their relationships and dependents, and the status of their beneficiaries. Otherwise, the estate is partially intestate if the testator dies owning assets that are not accounted for in their will, or the will does not make redundancy arrangements in case a beneficiary passes away.

Misconception 4: All Assets Are Included In The Intestate Estate

Another misconception is that when there is no will, all of the assets of the deceased are left in limbo waiting for distribution according to intestacy law. In reality, there are several categories of assets that are not included in the deceased estate. This includes any assets that are held in joint tenancy with another individual, as in that case the sole ownership of the asset shifts to the surviving owner. This applies to jointly owned real estate and bank accounts. Also, if the deceased had binding death benefit nominations in place for superannuation and insurance policies, these assets will not form part of the deceased estate and will be distributed according to the deceased’s wishes.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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