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Dying Intestate in the ACT

When a person passes away in the Australian Capital Territory without making a will, they are described as “intestate” and their assets are distributed according to the rules outlined in the Administration and Probate Act 1929. This may mean that the estate is not distributed in the way the deceased would intend. Dying intestate means that people who would be likely to be mentioned in a will, such as a friend or a charity, will not be recognised by the rules of succession legislation and will not benefit from the estate. This article lists the categories of people who are eligible to inherit from an intestate estate in the ACT, with particular focus on two types of potential beneficiary: the spouse and the children of the deceased.

Dying Partially Intestate

It is important to appreciate that someone with a valid will can still be partially intestate. This happens when a will has not been updated recently and the testator passes away owning property that is not accounted for in the will. In those circumstances, the executor or other eligible person will have to apply for a Letter of Administration to be granted the authority to distribute the unaccounted for assets. The assets will then be inherited according to the rules of succession.

Dying intestate in the ACT: Who Inherits?

The next of kin of the deceased inherits the assets of an intestate estate. In practice, this typically means that the deceased’s spouse and “issue” (children) are the beneficiaries of an intestate estate. The spouse or partner inherits the entire estate if the total value is less than $200,000. If the value is higher than this amount, the spouse is entitled to the first $200,000, plus 8% interest for every year that the beneficiary has to wait for their inheritance.

When the deceased has offspring, the partner receives a diminished portion of the remaining balance of the estate: for example, if there is one child, the partner receives half of the remainder, if there are several children, the partner inherits one-third of the remainder and the children receive equal shares of the residue.

When the deceased has more than one partner or spouse, the estate may be distributed between them. If the deceased had no spouse but did have children, they are equally entitled to inherit. Alternatively, if the deceased died without surviving partner or children, then other family members will inherit, in the following order of succession: grandchildren, parents, brothers and sisters, grandparents and uncles and aunts. In cases where a deceased leaves behind no family members, the estate is handed over to the ACT government.

Dying intestate: who is a spouse?

The law governing intestate estates in the ACT defines the term “spouse” to include partners in a marriage, de facto relationship, or domestic partnership. Under intestacy law, a de facto partner has identical rights to a married spouse, but only if the relationship is provable in court. To achieve de facto status, a couple needs to have either registered their civil partnership or be able to provide evidence that they lived together on a “genuine domestic basis” for at least two years. Other important factors in the verification of a de facto relationship are the existence of a sexual relationship, financial interdependence, joint ownership of property, care of children, and whether the relationship is recognised in the community.

A domestic partner will only exclusively inherit if they were in a partnership continuously for five years or more before the deceased died. If the relationship was of shorter duration, then any other spouse of the deceased is entitled to an equal share of the partner’s share. If a person dies intestate it makes it much harder for a de facto or domestic partner to inherit, but it is possible for a genuine spouse to prove their entitlement in court.

If a person is separated from their spouse but not divorced when they die intestate in the ACT, they are still considered married and the estranged spouse will inherit from the deceased estate. This is one reason why it is important to update a will after all major life events, including a separation from a life partner.

What is Issue?

The term “issue” in intestacy law refers to both biological offspring and legally adopted children. Succession rules dictate that an adopted child has the same entitlement to a portion of the intestate estate as a biological child. A child born outside of marriage is also equally able to claim from the intestate estate, but unless the deceased acknowledged the child before they died, the child may need to establish their paternity with the court.

Armstrong Legal can advise you if your loved one has died leaving an intestate estate, or help you to draft a will to make sure your wishes for your estate are respected after your death. Please contact our experienced and friendly team on 1300 038 223 or message us to arrange an appointment to discuss your legal needs.

Dr Nicola Bowes

This article was written by Dr 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 working in higher education, Nicola joined Armstrong Legal in 2020.

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