The state decides
If someone dies without a will, they die intestate. Being intestate means that the laws of the state or territory they live in will decide how their estate is administered. An estate is made up of a person’s assets and liabilities.
A person’s assets are their property and belongings that have value, such as a house, car and bank accounts. A person’s liabilities consist of any money they may owe, such as a mortgage, loans and taxes.
What to do if someone dies without a will?
The first step is to apply for permission to administer the estate. The estate includes all the person’s assets and liabilities. The court will then issue a grant of letters of administration. Letters of administration gives a person or trustee company (such as State Trustees) the legal right to administer the estate of the person who has died.
The closest next of kin can apply to be the administrator, or they can ask a solicitor or trustee company to apply for them.
The person who administers the estate is called an administrator rather than an executor, but their duties are mostly the same.
Defining the ‘estate’
In simple terms your estate is your net worth at any point in time. It is the sum of all of your assets, less any debts or liabilities at that time. The types of assets may form part of your estate might include:
- Real property;
- Vehicles;
- Personal items (e.g. jewellery, art, heirlooms and antiques etc.) and a separate document with any assets you have in a trust;
- Any stocks or bonds that you have; and
- Bank accounts.
Life insurance and superannuation
The proceeds from your life insurance and superannuation do not automatically form part of your estate. If you are unsure of how your life insurance and superannuation benefits will be dealt with, you should speak to your policy providers and/or consult a financial advisor.
How do you apply for letters of administration?
There are a series of steps you need to go through to apply – including advertising online that you are applying. When you submit your application to the Probate Office, you need to include the deceased person’s death certificate, a confirmation of the estate’s assets and liabilities and proof that you are the closest next of kin.
If the next of kin is a domestic partner, the Registrar of Probate will need to see proof of the relationship. You will need to include an affidavit or another legal document, proving that the relationship existed.
What does an administrator do?
Some of the other tasks an administrator needs to do include:
- Finding and contacting the beneficiaries (people who will be given something from the person’s estate), including anyone interstate or overseas. This may include genealogy searches to work out what sort of beneficiary they are under Victoria’s intestacy laws
- Protecting the person’s assets. You need to make sure the assets are safe. This might include taking out insurance and securing the assets.
- Providing death notifications to the Australian Tax Office, Centrelink and banks
- Paying any outstanding bills and debts from the estate funds and arranging to have assets valued
- Resolving disputes between beneficiaries
- Lodging tax returns if needed
- Claiming life insurance and superannuation
- Dealing with any real estate that is part of the estate, including getting the property ready for sale
- Distributing assets according to Victoria’s intestacy law.
How can we help?
Where there is no will, the closest next of kin can ask us to administer the person’s estate for them or help them to carry out tasks. If you die intestate, you don’t have a say in who can benefit from your estate. This means that having a clearly written and up-to-date will helps ensure that your property and possessions are distributed in accordance with your wishes.
Our professional staff can assist in providing unbiased service and trusted, individual care. Contact us by completing your details on this blog for obligation-free advice about how we can help you or;
