What is a deceased estate?
A deceased estate refers to all the things belonging to the person who has passed away. Their estate may include assets such as their:
- house
- car
- money
- personal belongings.
A deceased estate also includes any debts or other liabilities the deceased person was responsible for, such as a mortgage. It may also include superannuation, if the deceased person made a binding death benefit nomination that directs their superannuation death benefits to the Executor of their Will.
If the deceased person had a Will, the estate is administered in accordance with the terms set out in the Will. The Will appoints the executor to administer the estate. It also names the beneficiaries and their entitlements they will receive from the estate.
If there is no Will, the estate is administered according to the laws of intestacy. The person administering the estate is usually the next of kin and is called an administrator.
When someone dies with a Will
Executors
An executor is the person, people, or organisation nominated in a Will to legally administer the estate. The executor will do the following:
- locate and examine the Will
- obtain a grant of probate from the Supreme Court
- locate and notify beneficiaries
- verify and protect assets
- confirm insurance of assets
- collect valuables and income
- determine debts and liabilities
- prepare tax returns
- obtain income tax clearances
- transfer assets
- prepare financial statements and distribute the estate to beneficiaries.
Learn about choosing an executor for your Will
Learn about what to do if you are an executor for an estate
Beneficiaries
Beneficiaries are the people or organisations named in a Will to benefit or receive something from the deceased person’s estate.
If you're a beneficiary of a Will, it's likely that the executor will contact you. You should be aware that there are many steps involved in administering an estate. This means it can take a long time before the estate is distributed to the beneficiaries. It could take months or even years to complete the process.
When someone dies without a Will
Dying without a Will
If a person dies without a Will, it’s known as dying intestate. This means their estate must be managed through a legal process in line with the Succession Act 1981 (the Act). The Act sets out intestacy rules for how the estate should be administered.
An administrator is responsible for following the law and ensuring:
- all debts are paid
- assets are collected
- tax is finalised
- the estate is distributed to the lawful beneficiaries.
Learn about what to do if you are responsible for administering an estate
Intestacy rules for beneficiaries
According to the rules of intestacy, a deceased estate is distributed in the following order:
- next of kin, which is your spouse, de facto partner, your children and grandchildren
- parents
- brothers and sisters
- nephews and nieces
- grandparents
- uncles, aunts and cousins.
Under intestacy rules, a deceased estate can't be distributed to relatives more remote than your first cousins. In-laws, stepparents or stepchildren are not considered next of kin. They're not included in the rules for the distribution of a deceased estate.
A beneficiary must survive the person who has passed away by at least 30 days to be entitled to share in the estate.
If no one can be traced or it is uncertain whether someone is still alive who could benefit, then their share in the estate may be held in unclaimed monies.
If no living relatives are identified, then the law says that the estate will go to the Government.
Rights for a de facto partner
A de facto partner has the same rights as a spouse. It's defined as either one of two persons who are living together as a couple in a genuine domestic basis but who are not married to each other or related by family. A de facto partner can be a same-sex partner, or of any gender.
To share in the estate of a partner who has died intestate, the relationship must have been in existence continuously for at least 2 years ending on the deceased’s death.
Rights for an adopted person
An adopted person has the same rights as any lawful child to both the estates of:
- their adoptive parents
- the relatives of their adoptive parents.
They should be considered the same as though they are natural grandchildren, brothers, sisters, nephews, or nieces.
When an adopted person dies without a valid Will, their adoptive parents and their next of kin have the same rights as if they were their natural parents and next of kin.
Additionally, the descendants of an adopted person have the same relationship rights as their parent.
Rights for a child born to unmarried parents
A child born out of marriage has the same rights to share in an estate as a child born in a marriage. At times, there may be a need to prove paternity.
Proof of paternity may include evidence such as:
- the father admits paternity during his lifetime
- paternity being established against the father during his lifetime
- a declaration of paternity is made by the Supreme Court after the father’s death.
If a father wants to be eligible for a share of a child’s estate, paternity must be established while the child was living.
Many people think that everything will pass to their spouse if they don’t have a Will. But this is not always the case. The only way you can be sure that your wishes are followed, is by having a legal Will in place.