When a person dies without leaving a written will, the situation is known as "intestate death" or "intestate". If some parts of the will are not considered valid, the deceased is considered an intestate with respect to those parts.
For those who died intestate before 1 November 2017, the division of property follows the guidelines in Chapter 6 of Part 1 of the Administration and Probate Act 1958 (often referred to as the "A&P Act").
However, for those who died after 1 November 2017, the distribution of property is based on Part 1A of the A&P Act, Sections 70A-70ZL, and amendments thereto. This legal division may not be consistent with the personal preferences of the deceased.
Under the framework of the A&P Act, the assets of someone who dies intestate are distributed to their nearest relatives. This includes a surviving partner, the individual's children, parents or other blood-related relatives.
The term "next of kin" may include distant relatives. In some cases, an extensive search is necessary to locate these family members (refer to section 55 of the A&P Act).
For deaths after 1 November 2017, where no direct relative is identified as more than the first cousin, the assets are considered to be 'bona vacantia' (assets with no clear owner) and transferred to Victoria (under section 70ZL of the A&P Act).
Who oversees the distribution of property without a will?
In the absence of a will, a court-appointed administrator administers the distribution. Usually, this administrator is the primary beneficiary, as described in Chapter IA of the A&P Act.
Under the A&P Act (section 65), the court may authorise an executor's commission to the executor or administrator, payable out of the estate. They may waive this fee, especially if it relates to a deceased person (see section 65 of the A&P Act).
In some cases, an insurance bond may be required by the Registrar of Wills to ensure that the estate is properly administered (see Section 57 of the A&P Act and Rule 7 of the Supreme Court (Administration and Probate) Rules 2014). If you have any questions, please contact the experienced team at Chua Hing Wong & Co. Pleaseclick hereLearn more, orContact UsOffice. Address Level 2, 262 Queen Street, Melbourne 3000, Phone 96023988
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