Before considering any other question relating to the distribution of the estate, it is necessary to determine which legislation applies. This will depend on the date of death, that is, whether the intestate died on or after 1 March 2010 or whether the intestate died before this date. Where the intestate’s date of death is on or after January 1978 and before 1 March 2010, please refer to NSW — where the intestate dies on or after January 1978 and before 1 March 2010 (below).

The first matter which needs to be identified is who the deceased left as his or her next of kin and how are they entitled to share in the residuary estate of the intestate.

The first matter which needs to be identified is who the deceased left as his or her next of kin and how are they entitled to share in the residuary estate of the intestate.

Distributions on intestacy are governed in WA by the s 14 of the Administration Act 1903 (WA). This Act was last amended in the context of dealing with intestacy in December 2002 and in many respects is out of date and not sufficiently reflective of the current cultural and family landscapes. Inequities from the Act can flow especially to step children or others financially dependent on the deceased (if not already within the classes of beneficiaries in s 14 of the Act.)

The first matter which needs to be identified is who the deceased left as his or her next of kin and how are they entitled to share in the residuary estate of the intestate.

Intestacy Act 2010 (Tas) became effective as of 1 January 2011 cancelling previous law contained in Part V of Administration and Probate Act 1935 (Tas).

The first matter which needs to be identified is who the deceased left a spouse, left issue, or left next of kin and how are they entitled to share in the residuary estate of the intestate.

The first matter which needs to be identified is who the deceased left. Namely a spouse (in the ACT referred to as a “partner”), issue, or next of kin and how are they entitled to share in the residuary estate of the intestate.

The effect of the definitions in ss 104 and 105 of the Succession Act 2006 (NSW) is to include as a ‘spouse’:

• a person who was married to the intestate immediately before death;

• a person who was in a registered relationship with the intestate within the meaning of the Relationships Register Act 2010 (NSW) immediately before death; or

• a person living in a de facto relationship with the deceased immediately before death and the relationship has been in existence for a continuous period of two years or has resulted in the birth of a child.

A ‘de facto relationship’ is defined in s 21C of the Interpretation Act 1987 (NSW) and includes both opposite sex and same sex partners.

A spouse is the person who was legally married to the deceased as at the date of death.

A domestic partner (either registered or unregistered) is a person defined under the Administration and Pro-bate Act 1958 (Vic) to have been the domestic partner of the deceased as at the date of his/her death.

A spouse is the person’s:

• husband or wife;

• de facto partner, as defined in s 32DA Acts Interpretation Act 1954 (Qld); or

• civil partner, as defined in s 36 Acts Interpretation Act 1954 (Qld).

"Spouse" is not defined in the Administration Act 1903 , (WA) notwithstanding it is the legislation governing intestacy. Similarly, de facto spouse and de facto partner is not defined in the Act either. However, there are parameters for determining a spouse or de facto partner.

A spouse is the person who was legally married to the deceased as at the date of death.

A domestic partner is a person declared under the Family Relationships Act 1975 (SA) to have been the domestic partner of the deceased as at the date of his/her death or a person who was in a registered relationship with the deceased as at the date of his/her death.

Spouse” is defined at s 6 of the Intestacy Act 2010 (Tas).

The effect of the definitions in s 44 of the Probate and Administration Act 1929 (ACT) is to include as a ‘Partner’:

• a person who was married to the intestate immediately before death;

• a person who was in a relationship with the intestate within the meaning of the Civil Union Act 2012 (ACT) immediately before death; or

• a person who was the intestate's domestic partner immediately before death and the relationship has been in existence for a continuous period of two years or has resulted in the birth of a child who was under 18 years when the intestate died.

A 'domestic partner de facto relationship' is defined in s 169 of the Legislation Act 2001 (ACT) and includes both opposite sex and same sex partners.

See Who is a spouse/partner?.

The issue of a person are that person’s lineal descendants, namely, the person’s children, grandchildren, great grandchildren etc, whether or not the person was married. Issue includes children officially adopted by that person but does not include the person’s biological child who was adopted by others. Stepchildren are not issue.

Parentage may be established by presumption, as set out in ss 9–14 of the Status of Children Act 1996 (NSW).

The issue of a person are that person's lineal descendants, namely, the person's children, grandchildren, great grandchildren etc, whether or not the person was married. Issue includes children officially adopted by that person but does not include the person's biological child who was adopted by others. Stepchildren are not issue.

The issue of a person are that person's lineal descendants, namely, the person's children, grandchildren, great grandchildren etc, whether or not the person was married. Issue includes children officially adopted by that person but does not include the person's biological child who was adopted by others. Stepchildren are not issue.

Reference to the issue of a person is a reference to that person's lineal descendants. Issue includes the person's children, grandchildren, great grandchildren etc. Adopted children are treated as children of their adopting parents: s 75(1)(a)  of the Adoption Act 1994 (WA)

For the purposes of the Administration Act 1903 (WA), issue includes children, grandchildren and great grandchildren.

Reference to the issue of a person is a reference to that person's lineal descendants. Issue includes the person's children, grandchildren, great grandchildren etc.

Reference to the issue of a person is a reference to that person's lineal descendants. Issue includes the person's children, grandchildren, great grandchildren etc. Adopted children are treated as children of their adopting parents: s 10(b) Intestacy Act 2010 (Tas).

The issue of a person are that person's lineal descendants, namely, the person's children, grandchildren, great grandchildren etc, whether or not the person was married. Issue includes children officially adopted by that person but does not include the person's biological child who was adopted by others. Stepchildren are not issue.

Parentage may be established by presumption, as set out in ss 7–11 of the Parentage Act 2004 (ACT).

See Who are the issue?.

Where the intestate leaves one spouse but no issue, the spouse is entitled to the whole estate: s 111 of the Succession Act 2006 (NSW).

Where the intestate leaves one spouse or domestic partner but no issue, the spouse or domestic partner is entitled to the whole estate: s 51(1) Administration and Probate Act 1958 (Vic).

Where the intestate leaves a spouse or domestic partner and issue, the entitlement of the spouse or domestic partner is determined by s 51(2) Administration and Probate Act 1958 (Vic).

Where the intestate leaves one spouse but no issue, the spouse is entitled to the whole estate: s 35(1) and Sch 2 Pt 1 Succession Act 1981 (Qld).

The part of the deceased’s estate that the spouse is entitled to depends on the other relatives that also survive as well as the amount available for distribution.

Where the intestate leaves one spouse but no issue, the spouse is entitled to the whole estate: s 72G(1)(a) Administration and Probate Act 1919 (SA).

Where the intestate leaves a spouse or domestic partner and issue the entitlement of the spouse or domestic partner is determined by s 72J(1)(b)(i) Administration and Probate Act 1919 (SA).

The spouse or domestic partner must survive the intestate by twenty-eight days.

Section 12 of the Intestacy Act 2010 (Tas) applies and provides that the spouse is entitled to the whole estate.

Where the intestate leaves one spouse but no issue, the spouse is entitled to the whole estate: s 49, Sch 6 , Pt 6.1, Administration and Probate Act 1929 (ACT).

See Entitlements of a single spouse.

In view of the definition of ‘spouse’ in s 104 of the Succession Act 2006 (NSW), a person may have more than one spouse at the date of death. The entitlements of the spouses are then determined in accordance with ss 122–126 of the Succession Act 2006 (NSW).

In view of the definition of 'spouse' and ‘domestic partner’ in s 3 of the Administration and Probate Act 1958 (Vic) a person may have a spouse and a domestic partner at the date of death. The entitlements of the spouse and domestic partner are then determined in accordance with s 51A Administration and Probate Act 1958 (Vic).

In view of the definition of 'spouse' in s 5AA Succession Act 1981 (Qld), a person may have more than one spouse at the date of death. The entitlements of the spouses are then determined in accordance with s 36 Succession Act 1981 (Qld).

An intestate can leave only one husband or wife, but more than one “spouse”. The Table in s 14 of the Administration Act 1903 (WA), in conjunction with the entitlement of a de facto partner in s 15 , sets out a scheme for distribution where there are multiple spouses.

In view of the definition of 'spouse' and ‘domestic partner’ in s 4 of the Adminstration and Probate Act 1919 (SA), a person may have a spouse and a domestic partner at the date of death. The entitlements of the spouse and domestic partner are then determined in accordance with s 72H(2) Administration and Probate Act 1919 (SA).

Where the intestate leaves more than one spouse (as defined s 6 Intestacy Act 2010 (Tas)) then the spouses' entitlements are set out in ss 23–27 of the Act.

In view of the definition of ‘partner’ in s 44 of the Administration and Probate Act 1929 (ACT), a person may have more than one partner at the date of death. The entitlements of each partner are then determined in accordance with s 45A of the Administration and Probate Act 1929 (ACT).

See Entitlements of double or multiple spouses (where the intestate dies on or after 1 March 2010).

Where the intestate leaves one spouse who is not entitled to receive the whole of the estate, the spouse has a right to elect to acquire property from the estate — s 115 Succession Act 2006 (NSW). The section sets out certain limitations on this right and stipulates when court authorisation of the election is required.

The administrator’s duties and restrictions are also discussed.

Where the intestate left a spouse (or domestic partner) and the intestate estate includes an interest in a dwelling house in which the spouse or domestic partner was residing at the date of death of the intestate the spouse or domestic partner may elect to acquire that interest at its value as at the date of the death of the intestate.

The administrator's duties and restrictions are also discussed.

Where the intestate left a spouse and issue, s 39A of the Succession Act 1981 (Qld) gives the spouse a right with respect to the shared home.

A spouse of the intestate (“the resident”) can elect to acquire the intestate’s interest in the home which was shared by him or her and the intestate at the time of the intestate’s death (“the shared home”).

The administrator's duties and restrictions are also discussed.

See Election.

There is a right of election in WA, as it is known in other states, which deals with a spouse's preferential right to acquire the dwelling house from the estate but only within limits of that spouses overall provision as directed under section 14 of the Administration Act.

Where the intestate left a spouse (or domestic partner) and the intestate estate includes an interest in a dwelling house in which the spouse or domestic partner was residing at the date of death of the intestate, the spouse or domestic partner may elect to acquire that interest at its value as at the date of the death of the intestate.

The administrator's duties and restrictions are also discussed.

Where the intestate leaves one spouse who is not entitled to receive the whole of the estate, the spouse has a right to elect to acquire property from the estate — s 49G of the Administration and Probate Act 1929 (ACT). The section sets out certain limitations on this right and stipulates when court authorisation of the election is required.

The administrator's duties and restrictions are also discussed.

See Elections.

Where the intestate does not leave a spouse, the intestate’s children share the whole estate: s 127 of the Succession Act 2006 (NSW).

Where the intestate leaves a spouse or domestic partner and issue the entitlement of issue is determined by s 51(2) and s 52(1)(a) Administration and Probate Act 1958 (Vic). Where the intestate is not survived by a spouse or domestic partner and is survived by issue then the entitlement of the issue is determined by s 52(1)(f) Administration and Probate Act 1958 (Vic).

Where the intestate leaves issue but no spouse then the intestate’s issue are entitled to share in the residuary estate in accordance with s 36A Succession Act 1981 (Qld).

The Table in s 14 of the Administration Act 1903 (WA) sets out a scheme for distribution where the intestate leaves issue(s).

Where the intestate leaves a spouse or domestic partner and issue the entitlement of issue is determined by s 72J(1)(b)(ii) Administration and Probate Act 1919 (SA). Where the intestate is not survived by a spouse or domestic partner and is survived by issue then the entitlement of the issue is determined by s 72J(1)(c) Administration and Probate Act 1919 (SA). The distribution amongst issue is determined by s 72I Administration and Probate Act 1919 (SA).

The inheritance rights of children of an intestate are set out in s 28 of the Intestacy Act 2010 (Tas).

Where the intestate does not leave a spouse, the intestate's children share the whole estate: s 49 , Sch 6 , Pt 6.2 , Administration and Probate Act 1929 (ACT).

See Entitlements of the issue.

Where the intestate does not leave any surviving spouse or issue, then the following classes of relatives are entitled to share the estate. If there is at least one surviving relative within a class then the subsequent classes do not inherit:

• Parents: s 128 of the Succession Act 2006 (NSW).

• Brothers and sisters: s 129 of the Succession Act 2006 (NSW).

• Grandparents: s 130 of the Succession Act 2006 (NSW).

• Uncles and aunts i.e. the brothers and sisters of the intestate’s parents: s 131 of the Succession Act 2006 (NSW).

In some circumstances, a relative may be entitled to more than one share of the estate if he or she participates in more than one capacity: s 132 of the Succession Act 2006 (NSW).

Where the intestate does not leave any surviving spouse or domestic partner or issue, then the following classes of relatives are entitled to share the estate. If there is at least one surviving relative within a class then the subsequent classes do not inherit:

• Parents;

• Brothers and sisters and children of deceased brothers and sisters;

• Grandparents; and

• Uncles and Aunts, ie the brothers and sisters of the intestate's parents and children of deceased Uncles and Aunts.

Where the intestate does not leave any surviving spouse or issue, then the following classes of relatives are entitled to share the estate. If there is at least one surviving relative within a class then the subsequent classes do not inherit:

• Parents;

• Brothers and sisters and children of deceased brothers and sisters;

• Grandparents;

• Uncles and aunts, ie the brothers and sisters of the intestate's parents and children of deceased Uncles and Aunts.

Where a person entitled to share in the residuary estate under Pt 3 Succession Act 1981 (Qld) does not survive the intestate for 30 days, that part of the residuary estate shall be treated as if that person had died before the testate: s 35(2) Succession Act 1981 (Qld).

Where the intestate does not leave any surviving spouse or issue, then the following classes of relatives are entitled to share the estate:

• Parents and brother and sisters;

• Parents only;

• Brothers and sisters only;

• Grandparents;

• Uncles and aunts;

• Crown.

Where the intestate does not leave any surviving spouse or domestic partner or issue, then the following classes of relatives are entitled to share the estate. If there is at least one surviving relative within a class then the subsequent classes do not inherit:

• Parents;

• Brothers and sisters and children of deceased brothers and sisters;

• Grandparents; and

• Uncles and aunts, ie the brothers and sisters of the intestate's parents and children of deceased Uncles and aunts.

Where the intestate does not leave any surviving spouse or domestic partner or issue, then the following classes of relatives are entitled to share the estate.

• Parents;

• Brothers and sisters;

• Grandparents;

• Uncles and aunts and first cousins.

Where the intestate does not leave any surviving spouse (partner) or issue, then the following classes of relatives are entitled to share the estate. If there is at least one surviving relative within a class then the subsequent classes do not inherit:

• Parents;

• Brothers and sisters

• Grandparents; and

• Uncles and aunts — i.e., the brothers and sisters of the intestate's parents.

See Entitlements of other person.

Where the intestate left a spouse but no issue, the spouse is entitled to the whole estate: s 61B of the Probate and Administration Act 1898 (NSW). The spouse is the intestate's lawfully married partner but after 1 July 1985 the definition of spouse included de facto partners. Same sex partners were included after 28 June 1999.

Where the intestate leaves a spouse and issue, s 61B(3) of the Probate and Administration Act 1898 (NSW) applies. The spouse receives certain prescribed items and the residue is held in statutory trust for the issue of the intestate. “Statutory trust” is defined in s 61C of the Probate and Administration Act 1898 (NSW).

The circumstance where the intestate left a de facto and a legal spouse is also discussed as well as where the intestate left a de facto but not a legal spouse.

Where the intestate left a spouse and issue, the spouse has a right of election in respect of the shared home in accordance with s 61D of the Probate and Administration Act 1898 (NSW). How the right is to be exercised and the restrictions relating to it are set out in the sch 4 to the Probate and Administration Act 1898 (NSW).

Where the intestate left:

• Issue and no spouse: s 61B(4) of the Probate and Administration Act 1898 (NSW).

• No issue and no spouse: s 61B(5) of the Probate and Administration Act 1898 (NSW).

• No issue, no spouse and no parents: the estate passes according to s 61B(6) of the Probate and Administration Act 1898 (NSW) until there is at least one surviving member of the first of the following classes of relatives:

See NSW — Entitlements of spouse, issue and other persons (where the intestate dies on or after January 1978 and before 1 March 2010).

Where the intestate dies on or after 1 March 2010, s 138 of the Succession Act 2006 (NSW) provides that the entitlement of a minor vests immediately.

This does not mean that the administrator should distribute the share immediately to the minor. Minority is a legal disability and the administrator must protect and manage the minor’s asset until the disability ceases.

Apart from income tax and capital gains tax implications, the consequence of s 138 of the Succession Act 2006 (NSW) is that if the minor dies before reaching his or her majority, the share which had vested in the minor passes according to the will, if any, of the minor or according to the intestacy provisions of the Succession Act 2006 (NSW).

If, there is a minor beneficiary on intestacy, the administrator of the estate will need to hold the minor's share in trust until such time as the minor reaches his or her statutory age of majority of 18 years, and is able to control his or her own affairs and provide the administrator with a valid receipt.

Where a person entitled to share in the residuary estate under Pt 3 Succession Act 1981 (Qld) does not survive the intestate for 30 days, that part of the residuary estate shall be treated as if that person had died before the testate: s 35(2) Succession Act 1981 (Qld).

If there is a minor beneficiary on intestacy, the administrator of the estate will need to hold the minor's share in trust until such time as the minor reaches his or her statutory age of majority of 18 years, and is able to control his or her own affairs and provide the administrator with a valid receipt.

Section 65 of the Administration and Probate Act 1919 (SA) provides what will happen to a minor’s entitlement to share in an intestate estate. It also covers any other person who is not sui juris or is not resident in South Australia and has no authorised agent or attorney.

Section 39 Intestacy Act 2010 (Tas) applies in respect of the distribution of the estate of a person who dies intestate on or after 1 January 2011 and provides that the entitlement of a minor to an interest in an intestate estate vests immediately. It is not deferred until the minor reaches majority or marries.

Section 46 of the Administration and Probate Act 1929 (ACT) provides that a beneficiary who is not 18 years or married takes their interest on reaching 18 years or marrying before that age. Minority is a legal disability and the administrator must protect and manage the minor's asset until the disability ceases.

If a beneficiary dies before satisfying the condition for vesting, the beneficiary is treated as having pre-deceased the intestate.

See Interests of a minor.

This guidance note discusses what happens when a beneficiary does not wish to receive a share to which they are entitled.

That beneficiary may disclaim the gift and, if the death of the intestate occurs on or after 1 March 2010, s 139 of the Succession Act 2006 (NSW) provides that the beneficiary is treated as predeceasing the intestate. The question as to who is to receive the gift is thus made clear as the administrator will now ascertain the beneficiary who would have received the gift should the named beneficiary have predeceased the intestate. A similar deeming provision applies if a beneficiary is disqualified from taking a share for any reason, eg where the gift to the beneficiary is forfeited due to the wrongful acts of the beneficiary.

Where a beneficiary entitled to share in the residuary estate disclaims their entitlement under an intestacy the interest of the disclaiming person will be distributed amongst the other beneficiaries entitled to share in the intestate estate, treating the disclaiming person as if they were non-existent.

Where a beneficiary entitled to share in the residuary estate disclaims a gift under the will, the outcome is uncertain. However, the most likely outcome would be that the gift will fail and be distributed amongst the other beneficiaries entitled to share in the residuary estate.

There is no obligation on a beneficiary to take a bequest under a will or on intestacy: In the Will of Clayton.

Where a beneficiary entitled to share in the residuary estate disclaims their entitlement under an intestacy the interest of the disclaiming person will be distributed amongst the other beneficiaries entitled to share in the intestate estate, treating the disclaiming person as if they were non-existent.

Should a beneficiary disclaim, then there will be a question as to who would be entitled to the disclaimed gift. Section 40 of the Intestacy Act 2010 (Tas) makes it clear that for the purposes of the distribution of an intestate estate, a person who disclaims a gift will be treated as having predeceased the intestate person. The note to the section refers to the possibility of the issue of the person who disclaims being entitled to take that person's presumptive share of the intestate estate.

There are no provisions in the ACT similar to s 139 of the Succession Act 2006 (NSW). As a result there is some uncertainty as to the effect of a disclaimer. Where a child of the intestate survives the intestate but disclaims the gift, does the gift pass to that child's children or to the other children of the intestate? This uncertainty may require a declaration from the court.

See See Disclaiming entitlements.

Section 140 of the Succession Act 2006 (NSW) applies in respect of estates where the intestate dies on or after 1 March 2010 and makes it clear that the distribution of the estate in accordance with the intestacy provisions of the Act is not to be affected by gifts made to beneficiaries or others during the intestate’s lifetime or by gifts made to beneficiaries in a will where the estate is partially testate and partially intestate.

In Victoria, settlements and advances made by the intestate during his or her lifetime in the case of an intestacy may be taken into consideration and brought into account on the distribution of the intestate’s estate s 52(1)(f)(i) Administration and Probate Act 1958 (Vic).

The provisions relating to the distribution of the residuary estate on intestacy or the residuary estate in the event of a partial intestacy do not require any other gifts made by the intestate, whether during his or her lifetime or under the provisions of a will (which partially disposed of his or her estate) to be taken into consideration and brought into account on the distribution of the intestate’s residuary estate.

The distribution of the intestate estate in accordance with the provisions of the Administration Act 1903 (WA) is not to be affected by any gifts made by the intestate during the intestate's lifetime or, in the case of partial intestacy, by will to persons who are subsequently entitled to share the intestate estate.

In South Australia, gifts made by the intestate within the five year period immediately prior to the deceased’s death or a gift in the will in the case of a partial intestacy are taken into consideration and brought into account on the distribution of the intestate’s estate unless there is a contrary intention,or it appears from the circumstances of the case or the value does not exceed $1,000: s 72K Administration and Probate Act 1919 (SA).

Section 41 of the Intestacy Act 2010 (Tas) makes it clear that the distribution of the intestate is not to be affected by any gifts made by the intestate during the intestate's lifetime or, in the case of partial intestacy, by will to persons who are subsequently entitled to share the intestate estate.

Section 49BA of the Administration and Probate Act 1929 (ACT) makes it clear that the distribution of the intestate estate in accordance with the provisions of Pt 3A of the Act is affected by gifts made by the intestate within five years before death, subject to a contrary intention or a gift less than $10,000. This section does not, however, apply to a gift to the intestate's partner.

See Effect of testamentary and other gifts.