How the rules of intestacy can affect your estate

KEY TAKE-OUTS:

• Intestacy refers to the legal procedure of the administration of an estate if a person passes away without a Will.
• The rules of intestacy may have a significant impact on blended and nuclear families, which may lead to family disputes and increased legal costs.
• Ensuring that you have a valid Will in place is significantly important in ensuring your estate is distributed in accordance with your wishes

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Co-Authored by Taylah Gibson

What happens to your estate if you pass away without a Will?

When someone passes away without a valid Will, their estate is distributed according to a legal hierarchy known as the Rules of Intestacy. These rules are set out in Chapter 4 of the Succession Act, providing a default framework for estate distribution when no Will is in place.

 

How is an Intestate Estate Distributed?

If the deceased had a spouse and all children were born to that spouse, the estate typically passes entirely to the surviving spouse. If there is no surviving spouse, the estate is distributed equally among the deceased’s children. If a child has passed away, their share passes to their children (the deceased’s grandchildren).

If there are no surviving children or grandchildren, the estate is then distributed to the deceased’s parents. If the parents are also deceased, it moves to siblings, and continues down the familial line. If no eligible relatives can be found, the estate may pass to the State.

 

What About Blended Families?

The rules become more complex when blended families are involved.

In these cases, the spouse receives a statutory legacy—currently $350,000 (CPI adjusted)—plus interest. The rest and residue of the estate is then divided 50% to the spouse and 50% equally among all children of the deceased.

This can mean that, if the estate is not large enough to exceed the statutory legacy, the deceased’s children may receive nothing. Stepchildren and informal partners are generally not recognised under intestacy rules unless they meet strict legal criteria.

 

What Does This Mean for Families?

Without a Will, families can face:

• Disputes over who is entitled to inherit
• Exclusion of individuals the deceased may have wished to benefit (such as stepchildren or long-term partners)
• Unequal or unintended distributions
• Increased legal costs and lengthy delays in estate administration

This is especially important in blended families or where estrangement or complex relationships exist. The Rules of Intestacy do not allow for personalised circumstances, potentially disadvantaging people the deceased intended to provide for.

 

What Can I Do?

The best way to ensure your wishes are followed is to create a Will. Creating a Will enables you to determine who will be in charge of administering your estate, specify who is to receive the gifts/assets from your estate and reduces the risk of disputes and delays.

We recommend reviewing your estate planning documents every 3–5 years or after any significant life event (such as marriage, divorce, the birth of children, or changes in financial circumstances) to ensure they still reflect your intentions.

Schedule an Appointment Now

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