According to a study, nearly half of Australians pass away intestate, or without a will. The deceased’s loved ones usually have a clear sense of whom they would want their estate to go to, but the deceased might not have a valid will or a nominated beneficiary. So if the deceased named no beneficiary, it’s often unclear to whom the court rewards the assets.

The laws governing deaths without a will vary from one state or territory to the next. In most cases, a surviving spouse and children will share an intestate estate. If there’s no surviving spouse, child, parent, grandparent, grandchild, aunt, uncle, or cousin, the court can divide the assets among the other relatives.

Furthermore, it creates a chasm between the executor of the will and the deceased person’s loved ones. Fortunately, this quick guide can help you cope with the issue and figure out how to divide the property.

Definition Of Probate

Probate is the legal process that a court uses to determine if a person’s will is valid and to appoint an executor to administer the estate. Probate also includes the court-supervised administration of the estate, including collecting and distributing the assets of the deceased person and paying the debts of the estate.

Going through probate is required in order to have a deceased person’s will recognized by the law. Once the court issues a grant of probate, it officially recognizes the will and the executor as the proper parties to handle the estate and its assets.

When Does Probate Apply?

A legal representative, also called an executor, must go through probate to manage an estate after a person’s passing. They’re also responsible for dividing the assets among the beneficiaries. However, that can only happen until a court of law issues a document stating that the will is legitimate. It serves as an official confirmation of the executor’s position, also called a grant of representation. These funds are divided into two categories:

• In cases of a valid will, the legal process is known as probate.
• In the absence of a valid will, the court may require letters of administration.

A grant of representation authorizes another individual to manage the deceased person’s financial affairs. However, a grant of representation might not be necessary for some minor estates.

Why There’s No Beneficiary

A beneficiary’s absence is usually the result of a lack of a will. However, here are some scenarios where an estate is without successors:

• The will is legal, but the intended heir is no longer alive.
• The deceased named a beneficiary in the will, but the document is void.
• The deceased named a beneficiary on a retirement or life insurance policy, but the beneficiary has passed away.

Consult with a legal professional on what steps you must take in the absence of a beneficiary. They can help guide you through the legal system and ensure a court of law divides your loved one’s assets equally and equitably.

Who Inherits The Estate?

You must submit an application for a grant of letters of administration to your local court if there’s no legal will or if the deceased person’s will is invalid. The court also requires the deceased’s next of kin to apply for this grant. The next of kin include the deceased person’s spouse, domestic partner, or children.

If the deceased person leaves behind a spouse or domestic partner, the spouse or partner receives the entire estate. Depending on the size of the estate, children from previous relationships may receive a portion of the inheritance. The regulations change when the person the deceased leaves behind has more than one partner.

If the deceased had no spouses but had children, the court would divide the inheritance evenly among the children. If the deceased had no surviving spouse or any children, the whole estate goes to the following people:

• Parents/siblings
• Grandparents
• Cousins and aunts and uncles

However, the estate doesn’t transfer to the state unless there are no surviving relatives. Some states’ laws make it possible for individuals and groups to file moral claims against an estate. An organization with close ties to the decedent, a dependent who was not related to or in a de facto relationship decedent in any way, etc. If no heirs are found, the estate may be inherited by the state or territorial government under Succession Law.

Experienced independent legal guidance from a private attorney is always the best option if you’re considering drafting a will.

Do You Still Have To Go Through Probate When There Are No Inheritors?

It’s still possible to identify heirs whether or not a valid will exists. But you might need to file for probate before you can start handing out inheritances. A court only requires a grant of probate when the deceased person leaves a legitimate will and names an executor.

A court probate grant designates an individual as the legal representative of a decedent’s estate. Whether or not a will exists but no executor has been named, you need to apply for letters of administration.

In A Nutshell

In the absence of a will, a court follows legal procedures before it divides your assets among your beneficiaries. This might be challenging to do or time-consuming for you. Seeking advice and direction from an estate lawyer with experience with wills and estates is your best bet as they know the rules of intestacy set by the government.