What happens to your estate if you die without a Will? Administration Amendment Bill 2018

Senior Associate, Alyce Martin, and Lawyer, Maria Zappala in our Wills, Estates, and Succession Planning team explore the proposed changes to the Administration Act 1903.

If a person dies without leaving a Will, this is called dying intestate. How their estate will be distributed will depend on who they leave surviving them. The Administration Act 1903 (Act) is the legislation which sets out how the estate is divided for a person who dies without a Will.

We have previously written on proposed changes to the Act which are contained within the Administration Amendment Bill 2018 (Bill). At the date of publication of our last article, we noted that the Bill was making its way through parliament. Regretfully, over a year later, this is where the Bill remains.

We also explored the significant proposed amendment that the Bill seeks to make to the Act. By way of recap - this proposed amendment seeks to amend the amount a spouse will be entitled to receive from an intestate estate.

Under the current legislation, if a deceased person dies without a Will and leaves their spouse and children surviving them, the deceased's intestate estate will be distributed as follows:

1. The surviving spouse will be entitled to receive:
2. 1. All the deceased's household chattels;
   2. The first $50,000 of the intestate estate; and
   3. An additional one third of the balance of the intestate estate.

2. The deceased's children will then be entitled to an equal share of the remaining two thirds of the balance of the intestate estate.

This may leave the surviving spouse with a relatively small amount of the deceased's estate to maintain their lifestyle and take care of their children's needs. If the proposed changes to the Act go through, the deceased's estate would be distributed as follows:

1. The surviving spouse would be entitled to receive:
2. 1. All of the deceased's household chattels;
   2. The first $435,000 of the intestate estate; and
   3. An additional one third of the balance of the intestate estate.

2. The deceased's children will remain entitled to an equal share of the remaining two thirds of the balance of the intestate estate.

While the proposed changes seek to financially assist the surviving spouse, the changes have not yet been made law. If you think that these changes would be good for families then we encourage you to discuss this matter with your local member of parliament.

If you want to put in place the best plan for distribution of your estate after your death and not rely on the Act to divide your estate, you should consider making a Will. A Will does not need to be a complex document and enables you to clearly document how you would like your estate to be distributed upon your death.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.