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Who can inherit

If you die without eligible relatives

If you die without a will and do not leave any eligible relatives, your estate will pass to the State (Crown). However, the State does have the discretion to provide for any dependants of the deceased or any other person the deceased might reasonably have been expected to provide for if he or she had made a will. An application must be made to the Crown Solicitor by anyone wanting to claim. This situation is dealt with by Part 4.5 of the Succession Act 2006.

Statutory order of eligible relatives (intestacy rules)

The Succession Amendment (Intestacy) Act 2009 commenced on 1 March 2010. It now forms Chapter 4 of the Succession Act 2006. There have been significant changes to 'intestate succession' - or who is eligible to inherit the property of a person who has died without a will.

Major changes to previous intestacy rules

  • The primacy of the spouse's entitlement to an intestate estate is emphasised;
  • There is now a concept of multiple spouses;
  • There is no longer a distinction between brothers and sisters of the half blood or full blood;
  • First cousins can now inherit;
  • The categories of persons who can apply to the State for provision if there are no eligible relatives has been expanded;
  • Eligible relatives must survive the intestate by 30 days and be born before the intestate's death. If born after the intestate's death, he or she must have been in utero before the intestate's death and survive at least 30 days after birth; and
  • There is specific provision for Indigenous people.

The statutory order basically divides eligible relatives into two parts - spouses and other relatives. If the deceased is an Indigenous person, the statutory order is subject to exclusion or modification by a distribution order under Part 4.4 of the Act (see Indigenous persons' estates).

Distribution to the spouse, including multiple spouses

Spouse's entitlements

Spouse's entitlements are set out in Part 4.2 of the Succession Act 2006:

  • If the deceased leaves a spouse and no children, the spouse is entitled to the whole estate.
  • If the deceased leaves a spouse and children, and the children are the spouse's children, the spouse is entitled to the whole estate.
  • If the deceased leaves a spouse and children, but the children are not the spouse's children, the spouse is entitled to:
    • the intestate's personal effects (defined in section 101), and
    • a statutory legacy of $350,000.00 plus adjustment for CPI from December 2005, and interest if the statutory legacy is not paid in full within one year of the date of death. For the definition of statutory legacy, see section 106).
    • one-half of the remainder (if any) of the estate.

Multiple spouses

If the deceased leaves more than one spouse, but no children, the spouses are entitled to the whole estate in shares determined by the Succession Act 2006 (see below).

If the intestate leaves more than one spouse and children who are all issue of one or more of the surviving spouses, the spouses are entitled to the whole estate in shares determined by the Act (see below).

If the intestate leaves more than one spouse and children who are not issue of a surviving spouse:

  • the spouses are entitled to share the intestate's personal effects (as defined in section 101) , and
  • the spouses are entitled to share the statutory legacy that would be payable if the intestate had left only one surviving spouse, and
  • the spouses are entitled to share the one-half of the remainder (if any) of the estate.

If property is to be shared between spouses, the property is to be shared:

  • in accordance with a written agreement (a distribution agreement), or
  • in accordance with an order of the court (a distribution order), or
  • if certain conditions are satisfied, in equal shares (the default position).

The conditions enabling a distribution to multiple spouses in equal shares are set out in sections 125(2) & (3) of the Succession Act. They relate to notice which must be given to each spouse by the administrator.

More about spouses

Spouse's entitlements are set out in Part 4.2 of the Succession Act 2006. A spouse includes someone who is in a 'domestic partnership' or a 'de facto', including same-sex relationships.

Definition of spouse

A person who was married to the deceased immediately before the death or who was a party to a domestic partnership immediately before the death. This does not include ex-spouses. (see Succession Act 2006, section 104)

Definition of domestic or de facto partnership

Section 105 of the Succession Act defines a domestic partnership as a relationship between the intestate and another person that is a registered relationship or interstate registered relationship within the meaning of the Relationships Register Act 2010 or a de facto relationship that:

  • has been in existence for a continuous period of at least 2 years, or
  • has resulted in the birth of a child.

A de facto relationship is now defined in section 21C of the Interpretation Act 1987and includes same sex relationships, persons in registered relationships, including interstate relationships (Relationships Register Act 2010) and "a person in a de facto relationship" which is further defined as having a relationship as a couple living together who are not married to one another or related by family.

If it is necessary to determine whether a relationship is a de facto relationship, all the circumstances of the relationship are taken into account. Some of the factors that may be considered are:

  • the duration of the relationship
  • the nature and extent of common residence
  • whether or not a sexual relationship exists
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
  • the ownership, use and acquisition of property
  • the degree of mutual commitment to a shared life
  • the care and support of children
  • the performance of household duties
  • the reputation and public aspects of the relationship.

Spouse's preferential right to acquire property from the estate

The spouse's preferential right to acquire property from the deceased's estate is detailed in sections 114 to 121 of the Succession Act. It does not apply if there is more than one spouse. If you wish to preferentially acquire property, it is recommended that you consult a lawyer, as there are various conditions. These provisions are wider than the previous provisions which only allowed a spouse to acquire the shared (matrimonial) home.

Distribution among other relatives

In basic terms, the order of relatives who can inherit if there is no spouse is as follows:

  • children
  • parents
  • brothers and sisters
  • grandparents
  • aunts and uncles
  • cousins

Each 'category' must be exhausted before moving on to the next and once an eligible relative is found, the process stops.

Entitlement of children

If the deceased leaves no spouse but leaves children, the deceased's children share the whole estate equally.

If the deceased only leaves children who are the issue of a surviving spouse, those children will not inherit any part of the deceased's estate (as the estate will pass to the spouse).

If the deceased leaves a spouse or spouses and children who are not the children of a surviving spouse, and part of the estate remains after satisfying the spouse's or spouses' entitlements, the deceased's children are entitled to the remaining part equally.

If a child of the deceased has died before the deceased, and has surviving children, those children will take the deceased child's share equally. This continues through the generations until the entitlement is exhausted. That is, if the deceased child's child (the grandchild of the intestate) is also deceased, the share will pass to his or her children, i.e. the great grandchildren of the intestate. If the dead child had no children, their share is divided among the intestate's other children.

Minors

The share of a minor (a person who is under 18 years) vests immediately and is not deferred until he of she reaches 18 or marries. See section 138 of the Succession Act 2006.

Who is a child of the deceased?

The answer has become more complex since the introduction of surrogacy law, artificial insemination and in vitro fertilisation and the right of same sex couples to adopt.

Section 109 of the Succession Act 2006 provides that an adopted child is to be regarded for the purposes of intestacy rules, as a child of the adoptive parent or parents.

If you are unsure about whether a particluar child is an eligible relative under the intestacy rules you should consult a lawyer.

Parents

Where the deceased leaves no spouse and no children, but has parents living, the parents will get equal shares of the estate. If only one parent is alive, the whole estate will go to that parent.

Brothers and sisters

Where the intestate leaves no spouse, child, or parent, then their brothers and sisters share the whole estate equally. Half sisters and brothers are now specifically included. If the intestate had a brother or sister who died before them, leaving a child or children who survive the intestate, the child or children (the intestate's nieces or nephews) take the share of the intestate's deceased brother or sister. This continues through the generations until the entitlement is exhausted.

Grandparents

If the deceased leaves no spouse, child, parent, brother or sister, or issue of a deceased brother or sister - then the grandparents of the intestate share the whole estate equally.

Aunts and uncles

If the intestate leaves no spouse, child, parent, brother or sister, or issue of a deceased brother or sister (nephew or niece), and no grandparent, the brothers and sisters of each of the intestate's parents (the intestate's aunts and uncles) are entitled to the whole estate equally.

Cousins

If an aunt or uncle dies before the intestate leaving a child who survived the intestate (a cousin of the intestate), the cousin or cousins will share equally the deceased aunt or uncle's share of the estate. This only extends to first cousins. If a first cousin predeceases the intestate, the cousin's children (second cousins of the intestate) do not inherit.

Indigenous persons' estates

Section 101 of the Succession Act provides the following definition of an Indigenous person. An indigenous person is a person who:

  • is of Aboriginal or Torres Strait Islander descent, and
  • identifies as an Aboriginal person or Torres Strait Islander, and
  • is accepted as an Aboriginal person by an Aboriginal community or as a Torres Strait Islander by a Torres Strait Islander community.

The personal representative of the Indigenous estate (administrator) or a person claiming to be entitled to a share of the intestate estate under the laws, customs, traditions and practices of the group to which the deceased belonged, may apply to the court for an order for distribution of the estate. The application must be made within 12 months of the grant and before the estate is fully distributed. The application must be accompanied by a scheme for distribution.

Absence of persons entitled

If the intestate dies leaving no person who is entitled to the estate, the State is entitled to the whole estate, subject to its discretion to make provision as set out above.

If the deceased owned property with someone else

If the deceased owned property as a joint tenant, the property passes automatically to the surviving tenant regardless of a will or the intestacy rules. This joint property is not included as part of the deceased's estate.

However, if the deceased had held property as a tenant in common (that is, if property was co-owned through having a share in it), the share would pass to their beneficiaries as part of the estate.