Intestacy lawyers Melbourne & Ballarat

It’s never easy when someone you love passes away, but it can be particularly challenging if they die without a will, this is called intestacy. Without a will, people you want to inherit your property, personal belongings and other assets may receive nothing. Our lawyers in Melbourne and Ballarat can help you understand your rights if this happens to you, or prevent you from dying without a will.

Our experienced business advice lawyers can help you choose the best structure for your business both now and in the future.

What is intestacy or dying intestate?

Intestacy means that you die without a valid will. This means you may have had a will but it is considered to be invalid by a court. This is a different meaning to dying intestate, where you didn’t have a will at the time you passed away. Dying without a will can mean that the people you want to benefit from your estate don’t necessarily.

What situations may lead to a person dying without a will?

There are several reasons why a person may die without a will or intestate. These include:

  • They didn’t think their estate was big enough to make a will;
  • They were scared at the thought of dying;
  • They passed away suddenly before they had the opportunity to write a will; or
  • They couldn’t decide what to do with some of their assets.

People may also pass away without a valid will because:

  • Their circumstances have changed, perhaps they’ve remarried, and they didn’t change their will;
  • Their original will can’t be found;
  • They didn’t have a sound mind to make a valid will or decide what to do with their estate; or
  • Their will wasn’t properly signed or witnessed.

What happens if someone dies without a will?

Dying without a will or intestate requires specific legal steps to be taken. Because there’s no will, there are no named executors or beneficiaries, so an administrator will need to be appointed by a court. This is called an application for a grant of letters of administration. Usually, this application is brought by the person who believes they have the greatest entitlement to the estate, like a partner or children of the deceased.

The administrator will be responsible for paying any of the deceased’s outstanding bills and then work out how the rest of their estate will be distributed. This may include resolving any disputes about the estate.

In Victoria, there is a specific formula that is used to determine how to distribute a person’s money if they die intestate. This may not be how the deceased would have chosen to give away their assets. Generally, assets are given to the deceased’s living relatives, like their spouse or partner, children or any other distant relatives. If a person dies without any living relatives, the administrator may give all the assets to the Victorian government instead.

Our will lawyers are based in Melbourne and Ballarat and can explain what your rights are if your loved one passed away without a will.

How does probate work without a will?

If you have an intestate estate, there is no grant of probate. An application of probate is made where there is an executor who is appointed under a valid will.

When dying without a will, someone has to apply for a grant of letters of administration. This is usually the person who believes they have the right to the estate. The letters of administration then gives them the right to administer the estate within the rules of intestacy. If no one applies for letters of administration, the court can appoint an administrator.

Laws of Intestacy & Intestacy Rules

There are different intestacy rules in each state in Australia. In Victoria, the law outlines how an intestate estate is distributed. Generally, these rules apply where the people who would receive the estate have lived at least 30 days longer than the deceased.

The laws of intestacy determine who is entitled to the estate. Intestacy rules state the order in which people are entitled:

  • If the deceased has a partner but no children, their partner will be entitled to the whole estate;
  • If the deceased has a partner and children, the partner will be entitled to the whole estate if the children are theirs;
  • If the deceased has a partner and children from another person, then the partner can have the deceased’s personal belongings and the first $451,909 from the estate (this amount is indexed each year for inflation), and half of the balance of the estate. The children are then entitled to the remainder of the estate divided equally between them; or
  • If the deceased has more than one partner, the partners can share in the estate equally.

How MNG Lawyers can help

If someone you love has passed away without a will, our experienced will and estate lawyers can help. Based in Melbourne and Ballarat, we can explain what intestacy is and outline what your rights are to the estate. Our will lawyers can also guide you through the process and make sure that your loved one’s estate is distributed fairly.

Frequently Asked Questions

Yes, you can change your business structure if you find it no longer meets your needs. Depending on the complexity of your business and the structure you have and want to change to, changing how it’s structured can be relatively simple or may be quite costly.

While it’s not always essential that you have an agreement, for some business structures we recommend that you do have an agreement. For example, a partnership agreement would set out the rights and responsibilities of the partners. Similarly, a shareholders agreement sets out the obligations and rights of shareholders in a company. If you’re establishing a trust, you will need a trust deed to be drawn up.

Some business structures do require specific legal registrations. For example, a sole trader doesn’t have to register their business but a company must be registered with the Australian Securities and Investment Commission (ASIC). Regardless, if you have a business name that you use publicly it may be worthwhile registering your business name.

Get in touch today, always in confidence.

We’re here to help. It’s our top priority to ensure your needs and concerns are met every step of the way.
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