Dying Intestate Tasmania

In Tasmania, there are legal implications when someone dies without making a valid will. The Intestacy Act 2010 governs intestacy in Tasmania. This legislation specifies that in the case of intestacy, the deceased’s closest relations will inherit in a prescribed order. In the absence of a will, the wishes of the deceased are disregarded, and the rules set out in the legislation must be followed. This article explains what happens to an intestate deceased estate in Tasmania.

Intestacy

When someone dies without a valid will, an appropriate person (called an administrator) applies to the Supreme Court of Tasmania for a Grant of Letters of Administration. This probate grant affords the administrator the authority to manage and distribute the estate. An administrator’s responsibilities are similar to an estate executor in that they must pay debts, collect assets, finalise tax obligations and distribute the estate according to intestacy rules. The administrator compiles a list of beneficiaries using documentary evidence, including birth certificates, marriage certificates and death certificates. This can be a time-consuming and expensive task, especially if the deceased’s relatives live overseas.

A person is intestate if they die without making a will, or their will is found to be invalid. In addition, an estate may be found to be partially intestate. This happens if a will fails to account for a particular asset or one of the bequests in the will fails. In those cases, the Intestacy Act mandates how a deceased estate is divided amongst close relatives.

Beneficiaries Intestate Estate

Because an intestate estate is divided according to a statutory formula, it may be distributed contrary to the deceased’s wishes. In Tasmania, a spouse inherits the whole estate if the deceased had no children or if the deceased had children only with their current spouse. In contrast, children born to someone other than the current spouse are entitled to share in the intestate estate. Specifically, the spouse receives all personal effects, the statutory legacy ($350,000 adjusted annually for the cost of living), and half of the remaining intestate estate, while the children share the residue.

The Intestacy Act defines “spouse” broadly to include not only a husband or wife but also anyone in a genuine de facto relationship with the deceased (or a registered personal relationship according to the Relationships Act 2003. As such, it is possible for the deceased to have been both married and in a significant relationship with two separate people at the time of their death.

Where there are two spouses, the individuals share the entitlement according to either a written agreement between the parties, a court order, or through an equal distribution from the administrator. If the parties request a court-ordered division, the court will make any distribution that is “just and equitable”. This may result in any outcome. For instance, the court may order an even split between the parties or may allocate the entire intestate estate to one spouse only.

When the deceased has no spouse, any children inherit equally (grandchildren can inherit if the child is deceased). The deceased’s parents are entitled to the entire estate if the deceased died without a spouse or children. If the deceased had no surviving spouse, children, or parents, the order of priority extends to siblings, nephews and nieces, then grandparents, aunts and uncles, and finally cousins. When someone dies with no living relatives to inherit the intestate estate, the state government receives the deceased’s assets. However, even in that circumstance, the government may disperse some of the funds if a dependent makes a claim.

Dying Intestate: Indigenous Provision

The Intestacy Act recognises the significance of Indigenous customs, laws, and traditions when it comes to those of indigenous descent. This is significant as otherwise, intestacy law is dictated by a European definition of family relationships. If an indigenous Tasmanian dies without a will, there is special provision for people other than a spouse or blood relative to apply to the court for distribution from the estate. The eligibility of the applicant will depend on the specific traditions and customs of the deceased’s community.

Avoiding Dying Intestate In Tasmania

The law that governs intestacy in Tasmania is designed to fairly benefit the deceased’s closest relatives. In most cases, the distribution of an estate to a current spouse will reflect the wishes of the testator. However, standard rules do not work for every family. For instance, a testator may want to bequeath sentimental or valuable assets to their children rather than having their spouse inherit the entire estate. Some testators will also wish to make provisions for charitable endeavours and for dear friends in their wills. It is always preferable for someone to make comprehensive testamentary arrangements so that their wishes are followed after their death.

An experienced solicitor can draft a will to make sure that someone can avoid dying intestate. If you have any questions about dying intestate in Tasmania, call 1300 636 846. Please contact the team at Go To Court for any advice on intestate estates or challenging or contesting a will in Tasmania.

Author

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 Armstrong Legal in 2020.
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