What happens when there is no valid Will?

This information will help you understand how to sort out someone's estate if they died without a valid will.

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If a person dies without a valid Will, they are said to have died "Intestate". Intestacy is not just limited to those who have not written a Will.

Intestacy can also occur if:

  • The Will has not been signed, witnessed or drafted according to law
  • The Will is lost, damaged or tampered with
  • The Probate Office finds that there was a lack of capacity to make a Will, undue influence, or some other reason. In this instance a previous Will may be deemed valid, otherwise, the estate will be deemed intestate and the Administration Act will apply
  • If a person marries or divorces but does not update their Will.

Once any debts are paid, certain legal rules apply in relation to the value of the estate and the type and number of family members. Assets are usually divided between the spouse and children first.

De facto partners of any sex have inheritance rights but you will need to establish your relationship. The Civil Litigation Assistance Scheme may be available to help with inheritance issues.

Who administers an intestate estate?

Normally the spouse, de facto partner or next of kin should apply to the Supreme Court for a grant of letters of administration to take responsibility for the estate. But anyone over the age of 18 who is entitled to a share of the estate can apply. 

Applying for letters of administration is quite complicated and may require a lawyer.

The Public Trustee is not responsible for administering intestate estates. If the deceased has no next of kin, the Public Trustee can administer the estate if authorised by those entitled to the estate.

Page reviewed 12 May 2020