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21 Sep Invalid wills, passing away intestate, and intestacy rules
Written and accurate as at: Sep 15, 2021 Current Stats & Facts
Approximately 45% of Australians* pass away intestate—meaning they pass away with no Will or an invalid Will.
An implication of passing away intestate is that an individual’s estate is distributed in accordance with the intestacy rules of their relevant state or territory—which may differ from an individual’s intended wishes.
In Australia, there can be variations between each state and territory in terms of intestacy rules. As an example of this variation, and extending on our previous article, Invalid wills, passing away intestate, and intestacy rules, below is a general overview of:
- Tasmania
- South Australia
- Western Australia
- The Northern Territory
- The Australian Capital Territory
Please note: This is a high-level overview of the intestacy rules applied to several possible scenarios. There can be exceptions, and there also can be other potential scenarios where the intestacy rules apply, for example, multiple spouses, survivorship criteria, size of the estate assets, and where the estate assets are located.
Intestacy rules in Tasmania
Scenario 1: You are survived by a spouse and children from a previous relationship
A spouse is entitled to a statutory legacy of $350,000 (plus adjustment for CPI), the personal effects, and one-half of the remaining estate balance—the remainder of the estate is distributed between the children (and the children of any deceased children).
Scenario 2: You are only survived by a spouse
A spouse is entitled to the whole estate.
Scenario 3: You are only survived by children
The estate is distributed between the children (and the children of any deceased children).
Scenario 4: You aren’t survived by a spouse nor children
The estate is distributed in the following down-the-line order:
- parents
- brothers and sisters (and children of any deceased brothers and sisters)
- grandparents
- aunts and uncles (and children of any deceased aunts and uncles)
- Government (the Crown).
Intestacy rules in South Australia
Scenario 1: You are survived by a spouse and children
If the estate doesn’t exceed $100,000, a spouse is entitled to the personal effects and the whole estate.
Whereas, if the estate exceeds $100,000, a spouse is entitled to $100,000, the personal effects, and one-half of the remaining estate balance—the remainder of the estate is distributed between the children (and the children of any deceased children).
Scenario 2: You are only survived by a spouse
A spouse is entitled to the whole estate.
Scenario 3: You are only survived by children
The estate is distributed between the children (and the children of any deceased children).
Scenario 4: You aren’t survived by a spouse nor children
The estate is distributed in the following down-the-line order:
- parents
- brothers and sisters (and children of any deceased brothers and sisters)
- grandparents
- aunts and uncles (and children of any deceased aunts and uncles)
- Government (the Crown).
Intestacy rules in Western Australia
When compared to other states and territories, the intestacy rules in Western Australia can be complex. Therefore, the scenarios below have been simplified for comparison purposes.
Scenario 1: You are survived by a spouse and children
If the estate doesn’t exceed $50,000, a spouse is entitled to the personal effects and the whole estate.
Whereas, if the estate exceeds $50,000, a spouse is entitled to $50,000 plus interest, the personal effects, and:
- half of the remaining estate balance, if survived by one child (or the children of one deceased child)—the remainder of the estate is distributed to the child (or the children of one deceased child); or
- a third of the remaining estate balance, if survived by children (and the children of any deceased children)—the remainder of the estate is distributed to the children (and the children of any deceased children).
Scenario 2: You are only survived by a spouse
A spouse is entitled to the personal effects and the whole estate.
Please note: If survived by a spouse, as well as parents or siblings (and children of any deceased siblings), but not children (and children of any deceased children), then a spouse may not be entitled to the whole estate.
Scenario 3: You are only survived by children
The estate is distributed between the children (and the children of any deceased children).
Scenario 4: You aren’t survived by a spouse nor children
The estate is distributed in the following down-the-line order:
- parents
- brothers and sisters (and children of any deceased brothers and sisters)
- grandparents
- aunts and uncles (and children of any deceased aunts and uncles)
- Government (the Crown).
Please note: If survived by parents, as well as siblings (and children of any deceased siblings), then parents may not be entitled to the whole estate.
Intestacy rules in the Northern Territory
When compared to other states and territories, the intestacy rules in the Northern Territory can be complex. Therefore, the scenarios below have been simplified for comparison purposes.
Scenario 1: You are survived by a spouse and children
If the estate doesn’t exceed $350,000, a spouse is entitled to the personal effects and the whole estate.
Whereas, if the estate exceeds $350,000, a spouse is entitled to $350,000, the personal effects, and:
- half of the remaining estate balance, if survived by one child (or the children of one deceased child)—the remainder of the estate is distributed to the child (or the children of one deceased child); or
- a third of the remaining estate balance, if survived by children (and the children of any deceased children)—the remainder of the estate is distributed to the children (and the children of any deceased children).
Scenario 2: You are only survived by a spouse
A spouse is entitled to the personal effects and the whole estate.
Please note: If survived by a spouse, as well as parents or siblings (and children of any deceased siblings), but not children (and children of any deceased children), then a spouse may not be entitled to the whole estate.
Scenario 3: You are only survived by children
The estate is distributed between the children (and the children of any deceased children).
Scenario 4: You aren’t survived by a spouse nor children
The estate is distributed in the following down-the-line order:
- parents
- brothers and sisters (and children of any deceased brothers and sisters)
- grandparents
- aunts and uncles (and children of any deceased aunts and uncles)
- Government (the Crown).
Intestacy rules in the Australian Capital Territory
Scenario 1: You are survived by a spouse and children
If the estate doesn’t exceed $200,000, a spouse is entitled to the whole estate.
Whereas, if the estate exceeds $200,000, a spouse is entitled to $200,000 plus interest, the personal effects, and:
- half of the remaining estate balance, if survived by one child (or the children of one deceased child)—the remainder of the estate is distributed to the child (or the children of one deceased child); or
- a third of the remaining estate balance, if survived by children (and the children of any deceased children)—the remainder of the estate is distributed to the children (and the children of any deceased children).
Scenario 2: You are only survived by a spouse
A spouse is entitled to the whole estate.
Scenario 3: You are only survived by children
The estate is distributed between the children (and the children of any deceased children).
Scenario 4: You aren’t survived by a spouse nor children
The estate is distributed in the following down-the-line order:
- parents
- brothers and sisters (and children of any deceased brothers and sisters)
- grandparents
- aunts and uncles (and children of any deceased aunts and uncles)
- Government (the Crown).
If you have any queries about this article, please contact us.
*NSW Government, NSW Trustee & Guardian. Retrieved from: http://www.tag.nsw.gov.au/wills-faqs.html