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Intestate Succession Act (ACT)

An “intestate” person is someone who passes away without making a valid last will and testament. Unfortunately, this means that the deceased’s personal wishes for the disposal of their estate cannot be given proper consideration, and the estate is distributed according to the state’s intestate succession act. In the Australian Capital Territory the Administration and Probate Act 1929 privileges the rights of the closest next of kin, typically the spouse and children of the deceased, to inherit an intestate estate. This article outlines the role of the intestate succession act in the administration of a deceased estate in the ACT.

Partially Intestacy

People often think they have adequate testamentary arrangements in place, but then their family finds after their death that the estate is at least partially intestate. A solicitor will take care to draft a will and make updates to prevent an estate from being subject to the intestate succession act. Many people who draft their own will neglect to make allowance for future assets. If a testator has not updated their will in years, they may have assets that are not accounted for, making the estate partially intestate and subject to the intestate succession act. When a will is partially intestate, the executor must apply to the Supreme Court for a Letter of Administration to assume authority for the additional assets.

What Happens When Someone Dies Intestate In The ACT?

In many ways, it is much harder to administer an intestate estate. When a deceased has left behind a will, there is a comfort in knowing that their possessions will be gifted according to their wishes. When there is no will, the family of a deceased are constrained and cannot act according to any wishes that the deceased might have expressed in their lifetime. Instead, the estate is distributed according to the local intestate succession legislation.

The first step in these circumstances is for an eligible person to apply to the Supreme Court of the ACT for a Grant of Letters of Administration – No Will. This Grant is designed to confer authority on an administrator to act in place of an executor to administer the deceased estate. If no eligible person is willing to act as administrator, the Supreme Court can engage the Public Trustee and Guardian to undertake the role instead. Alternatively, if the estate has debts, a creditor can apply to the Court to act as administrator.

Who Inherits an Intestate Estate in the ACT?

In the ACT, the deceased estate of an intestate person is distributed according to the succession order stipulated in the governing act. The division of an intestate estate depends on whether the deceased had a spouse and/or children and the overall value of the assets in the estate. For instance, if the monetary value of the estate is less than $200,000, then the spouse inherits the whole estate. For estates that are worth more than $200,000, the spouse receives the initial $200,000 and also 8% interest each year that the spouse has to wait for their inheritance. When the deceased had both a spouse and a child, the spouse receives their portion and then shares the remainder equally with the child. When there is more than one child, the spouse inherits one-third of the residual and the children share the other two-thirds between themselves in equal parts.

The intestate succession act accounts for other family compositions: such as, when the deceased left behind more than one partner who can each establish their relationship, the spousal portion is shared equally. Also, if the deceased had children but no spouse, each child will inherit an equal share.

In the event that the deceased passes away leaving no spouse or children, the next closest family member will inherit, according to the following line of succession: grandchildren, parents of the deceased, siblings, grandparents, and aunts and uncles. Finally, if the deceased has no remaining family members, the estate is transferred to the state of the ACT.

The Categories Of Spouse And Child Under The Intestate Succession Act

Under intestate law in the ACT, a spouse includes both a married or de facto partner. A de facto relationship is legally defined as involving a couple who are not currently married but who have lived together for at least two years on a genuine domestic basis. The court does not require the same evidence of relationship length if the couple shares a child or has formally registered their relationship in the ACT. If there is sufficient evidence that the parties did have a de facto relationship, the court will accept the status of the couple as equal to a married couple for the purposes of succession law.

Armstrong Legal can provide guidance on the impact of the intestate succession act on your estate, and answer general and specific questions relating to wills and estates in the ACT. Please contact our offices on 1300 038 223 or email to make an appointment with our expert team.

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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