What to Know When Someone Dies Without a Will

3 minute read

December 29, 2023

Losing a loved one is a difficult experience, and it can become even more challenging if they pass away intestate (without a valid will). In this article, we'll explore the key aspects of intestacy and provide guidance for those facing this situation.

The Procedures for Settling an Estate Without a Will 

The procedure for settling an estate when there is no will depends on the value of the assets of the deceased.

If the deceased had less than $15000 in assets and did not own real estate, the next of kin does not need to apply for legal authority to distribute the estate, and may themselves manage the task of settling an estate in accordance with the rules for asset distribution (covered later). 

If the deceased had more than $15000 in assets, the procedure is as follows: 

• Decide who will be the administrator (an equivalent role to that of the executor when there is a will). The administrator can be either a close relative or trustee corporation, but is chosen according to the order of priority, meaning that the closest relative has the first right to apply to be the administrator. 

• Obtain legal authority for the estate’s administrator. This step involves applying to the Court for letters of administration, and may take some time. The Court will grant letters of administration once they are satisfied that:
• there is agreement about who will administer the estate,
• an effort to find a will has been undertaken, and 
• the deceased’s family relationships have been proven

• Administer the estate. Handle paperwork, close accounts, pay taxes, settle any debts, and make funeral arrangements. If a coffin is required, consider choosing from our quality collection.

• Distribute the estate. The rules for distributing an estate are explained below:

The Rules Governing Asset Distribution for Intestate Deaths

According to Section 77 of the Administration Act 1969, which sets out the rules for asset distribution in the event of an intestate death, the estate is to be divided as follows: 

• If there is a spouse or partner, but no parents or children: The spouse receives the entire estate.
• If there is a spouse or partner and children, the spouse will receive the personal effects (such as furniture, jewellery, housewares), $155,000 (with interest from the date of death), and one-third of the remaining estate. The children will inherit the remaining two-thirds, divided equally among them.
• In cases involving stepchildren or a blended family, the entitlement of stepchildren to the estate depends on factors like their age, relationship to the deceased, and financial dependence on the deceased. To fully understand stepchildren's entitlements, it is recommended to consult a lawyer or trustee corporation.
• If there is a spouse or partner and parents, but no children: the spouse will receive the personal effects, $155,000 (with interest from the date of death), and two-thirds of the remaining estate. The deceased's parents will inherit the remaining one-third, divided equally between them.
• If there are children but no spouse or partner: the children will inherit the entire estate, with equal shares for each child.
• In the absence of a spouse, partner, or children, but with surviving parents: the entire estate will be divided equally among the parent or parents.
• If there is no spouse, partner, children or surviving parents, but there are surviving siblings: the entire estate will be divided equally among the siblings.

Spousal eligibility and exceptions

In cases where the deceased and their spouse had separated, their spouse will still receive their inheritance according to the above rules, unless the Family Court issued a separation order. 

If the deceased had a spouse and a de-facto partner, they will equally split the estate. 

To qualify as a de-facto partner, and thus be entitled to inherit from the estate, the relationship had to have been of a duration of at least 3 years. However, there are exceptions: 

• If they have a child together
• If one partner has made significant contributions to the relationship 

There are other factors that are examined by the Court in determining whether or not 2 people are de-facto partners. For more information, read the official guidance from the Ministry of Justice or consult a lawyer to see whether your relationship qualifies.