Part 5Intestacy

Part 5—Intestacy 101—Interpretation (1) In this Part— dwelling means a house or other building occupied as a dwelling and includes— (a) a part of a house or other building occupied as a separate dwelling; or (b) the curtilage of a dwelling; personal goods in relation to an intestate means— (a) any articles of household or personal use or ornament that form part of the intestate's estate; and (b) any motor vehicle that forms part of the intestate's estate, but does not include any goods used for business purposes; relative means a relative of the first, second, third or fourth degree; relative of the first degree in relation to an intestate means a parent of the intestate; relative of the second degree in relation to an intestate means a sibling of the intestate; relative of the third degree in relation to an intestate means a grandparent of the intestate; relative of the fourth degree in relation to an intestate means a sibling of a parent of the intestate; value in relation to an intestate estate, or property forming part of an intestate estate, means the value of the estate or property as at the date of the death of the intestate. (2) For the purposes of this Part, it is immaterial whether a relationship is of the whole blood or the half blood. (3) For the purposes of this Part, a child born to a person within 10 months after the person's marriage or domestic partnership is ended by the death of the person's spouse or domestic partner will, in the absence of proof to the contrary, be presumed to be the child of that person and the person's deceased spouse or domestic partner. (4) For the purposes of this Part, a person will not be regarded as having survived another person unless— (a) the person survives the other person by at least 30 days; or (b) the person is conceived before, but born after, the other person's death and survives for at least 30 days after birth. (5) However, the rules set out in subsection (4) are not to be applied if, as a result of their application, the intestate estate would pass to the Crown. Division 2—Election by spouse or domestic partner to acquire interest in dwelling 102—Election by spouse or domestic partner to acquire interest in dwelling (1) Subject to this Part, if the intestate estate of an intestate who is survived by a spouse or domestic partner includes an interest in a dwelling in which the spouse or domestic partner of the intestate was residing at the date of the intestate's death, the spouse or domestic partner may elect to acquire that interest at its value as at the date of the death of the intestate. (2) An election under this section must be made— (a) if the spouse or domestic partner is an administrator of the intestate estate—within 3 months after the date on which administration of the intestate estate was granted; or (b) if the spouse or domestic partner is not an administrator of the intestate estate—within 3 months after the administrator gives the spouse or domestic partner notice requiring them to make an election under this section, or within such longer period as the Court may allow. (3) The Court may, on application, if it considers there are proper reasons for doing so, extend the time within which an election under this section may be made. (4) A person who makes an election under this section may revoke it at any time before the transfer of the interest in the dwelling to them. (5) An election, or revocation of an election, under this section is made by the spouse or domestic partner giving notice of the election or revocation— (a) if the spouse or domestic partner is an administrator of the intestate estate— (i) to any other administrator of the estate; and (ii) to every person beneficially interested in the estate who has legal capacity; and (iii) if any person beneficially interested in the estate lacks legal capacity—to the person who is legally responsible for the administration or management of the estate of the beneficiary; or (b) if the spouse or domestic partner is not an administrator of the intestate estate—to the administrator of the estate. (6) A notice under this section must be given in accordance with the regulations. (7) If a person makes an election under this section to acquire an interest in a dwelling— (a) the amount to which the person is entitled out of the intestate estate will be reduced by the value of that interest; and (b) if the value of that interest exceeds the amount to which the person is entitled out of the intestate estate, the person must, on making the election, pay into the intestate estate the difference between that value and the value of the person's interest in the intestate estate. (8) The administrator of an intestate estate must obtain a valuation of a dwelling in relation to which a spouse or domestic partner of the intestate may acquire an interest if— (a) the value of the dwelling is not agreed on by all persons entitled to share in the distribution of the estate; or (b) a valuation of the dwelling is requested by a person acting on behalf of a beneficiary who lacks legal capacity. (9) A valuation for the purposes of subsection (8) must be conducted by a person who lawfully carries on a business that consists of or involves valuing land. (10) A spouse or domestic partner of an intestate may acquire an interest in a dwelling under this section even though the spouse or domestic partner is— (a) an administrator of the intestate estate or a trustee; or (b) a minor; or (c) a person who lacks legal capacity. (11) If a spouse or domestic partner of an intestate revokes an election made by them under this section, any costs incurred in giving effect to that election are to be deducted from their share of the intestate's estate. (12) If — (a) an intestate is survived by— (i) a spouse and 1 or more domestic partners; or (ii) no spouse but 2 or more domestic partners; and (b) the estate of the intestate includes an interest in a dwelling in which— (i) the spouse and 1 or more domestic partners; or (ii) 2 or more domestic partners, were residing at the date of the intestate's death; and (c) more than 1 of those persons desires to acquire the interest, the preceding provisions of this section (and sections 103 and 104) do not apply, but instead any of those persons may apply to the Court for an order authorising the acquisition of the interest. (13) An application to the Court under subsection (12) must be made— (a) within 3 months after the date on which administration of the intestate estate is granted; or (b) within such longer period as the Court may allow. (14) An administrator of an intestate estate must not dispose of an interest in a dwelling referred to in subsection (12) unless— (a) the period within which an application to the Court under that subsection may be made has expired and no application has been made; or (b) the dwelling has ceased to be the ordinary place of residence of all persons entitled to apply to the Court under subsection (12). (15) An administrator of an intestate estate must not dispose of an interest in a dwelling pending the determination by the Court of any application made under subsection (12) with respect to that interest. (16) A spouse or domestic partner of an intestate estate may continue to reside in a dwelling in relation to which a spouse or domestic partner may make an application to the Court under subsection (12)— (a) until the period within which such an application may be made has expired; or (b) if a person has by virtue of a mortgage or charge the right to enter into possession of the dwelling or to dispose of the interest—until that right is exercised, whichever occurs first. (17) The Court must not make an order providing for the acquisition of an interest in a dwelling by a spouse or domestic partner of the intestate unless satisfied that the acquisition is not likely to— (a) substantially diminish the value of the assets in the estate of the intestate; or (b) make disposal of the assets of the intestate estate substantially more difficult. 103—Restriction on right of spouse or domestic partner to acquire interest in dwelling (1) An election under section 102 may only be made with the approval of the Court if— (a) the dwelling forms part of a building and the deceased person's estate includes an interest in the whole of the building; or (b) the dwelling forms part of a registered or registrable interest in land and— (i) the deceased estate includes an interest in the whole of that interest; and (ii) part or all of the land is used for agricultural purposes; or (c) the dwelling forms part of a building used as a hotel, motel, boarding house or hostel at the date of the intestate's death. (2) An application for the approval of the Court to make an election must be made— (a) if the spouse or domestic partner is an administrator of the intestate estate—within 3 months after the date on which administration of the intestate estate was granted; or (b) if the spouse or domestic partner is not an administrator of the intestate estate—within 3 months after the administrator gives the spouse or domestic partner notice requiring them to make an election under section 102, or within such longer period as the Court may allow. (3) The Court must not approve the making of an election under section 102 unless the Court is satisfied that the acquisition of the interest in the dwelling by the spouse or domestic partner of the intestate is not likely to— (a) substantially diminish the value of the assets in the estate of the intestate; or (b) make the disposal of the assets of the intestate estate substantially more difficult. (4) If the Court makes an order approving the making of an election, the time for making the election under section 102 is extended by a period of 30 days commencing on the day on which the order is made. 104—Restriction on right of administrator to sell interest in dwelling (1) An administrator of an intestate estate must not dispose of an interest in a dwelling in which the spouse or domestic partner of the intestate was residing at the time of the intestate's death unless— (a) the period within which the spouse or domestic partner may elect to acquire the interest has expired and no election has been made; or (b) the dwelling has ceased to be the ordinary place of residence of the spouse or domestic partner. (2) An administrator of an intestate estate must not dispose of an interest in a dwelling pending the determination by the Court of any application made by the spouse or domestic partner of the intestate for approval to make an election under section 102 in relation to that interest. (3) A spouse or domestic partner of an intestate may continue to reside in a dwelling in relation to which the spouse or domestic partner may make an election under section 102— (a) until the period within which the spouse or domestic partner may make an election has expired; or (b) if a person has by virtue of a mortgage or charge the right to enter into possession of the dwelling or to dispose of the interest—until that right is exercised, whichever occurs first. Division 3—Rules governing distribution of intestate estates 105—General rules as to distribution of intestate estate (1) Subject to this Part, an intestate estate must be distributed according to the following rules: (a) if the intestate is survived by a spouse or domestic partner but no children—the spouse or domestic partner is entitled to the whole of the intestate estate; (b) if the intestate is survived by a spouse or domestic partner and by children and the value of the intestate estate does not exceed the preferential legacy—the spouse or domestic partner is entitled to the whole of the intestate estate; (c) if the intestate is survived by a spouse or domestic partner and by children and the value of the intestate estate exceeds the preferential legacy— (i) the spouse or domestic partner is entitled to the preferential legacy and to 1 half of the balance of the intestate estate; and (ii) the children are entitled to the balance of the intestate estate in accordance with section 108; (d) if the intestate is not survived by a spouse or domestic partner but is survived by children—the children are entitled to the whole of the intestate estate in accordance with section 108; (e) if the intestate is not survived by a spouse or domestic partner, or by children, but is survived by a relative or relatives, or the children of a relative or relatives—the relative, relatives or children of a relative or relatives are entitled to the whole of the intestate estate in accordance with sections 108 and 109; (f) if the intestate is not survived by a person entitled to the intestate estate under the preceding provisions of this subsection—the intestate estate vests in the Crown. (2) For the purposes of this section, the preferential legacy to which a spouse or domestic partner is entitled is— (a) $120 000 if the entitlement arises during the financial year in which this section comes into operation; or (b) if the entitlement arises during a financial year commencing after the commencement of this section— (i) $120 000; or (ii) if the regulations prescribe a higher amount to be the preferential legacy applying during that financial year—that higher amount. (3) However, if a spouse or domestic partner of an intestate is entitled to a preferential legacy and to 1 or more statutory legacies, the preferential legacy is an amount equal to the highest amount fixed by way of statutory legacy under the laws of other States or Territories under which the spouse or domestic partner is entitled to a statutory legacy subject to the following qualifications: (a) amounts received by the spouse or domestic partner by way of statutory legacy under any of those laws are taken to have been paid towards satisfaction of the preferential legacy of the spouse or domestic partner; (b) if any of those laws contain no provision corresponding to paragraph (a), no amount is payable by way of preferential legacy until the entitlements of the spouse or domestic partner under those laws are satisfied, or the spouse or domestic partner renounces their entitlements to payment, or further payment, by way of statutory legacy under those laws. statutory legacy means an amount defined to be a statutory legacy by a law of another State, or a Territory, of the Commonwealth, being an amount to which a spouse of an intestate may be entitled under that law. (5) The Minister may, by notice in the Gazette— (a) on or before 1 July of the financial year commencing after the commencement of this section; and (b) on or before 1 July in any subsequent year, determine, in accordance with the methodology set out in the regulations, the preferential legacy for the following financial year. 106—Division of estate if intestate is survived by spouse or domestic partner, or both (1) If an intestate is survived by a spouse or domestic partner, the spouse or domestic partner (as the case may be) is entitled to any personal goods of the intestate. (2) Subject to this section, if an intestate is survived by both a spouse and a domestic partner, each is entitled to an equal share of the property (including personal goods of the intestate) that would have devolved on the spouse or domestic partner if the intestate had been survived only by a single spouse or domestic partner. (3) If a dispute arises between a surviving spouse and a domestic partner as to the division between them of personal goods of an intestate, the administrator of the intestate's estate must give the spouse and domestic partner notice in the prescribed manner that if they do not agree on the division of the personal goods of the intestate between them within 3 months of notice being given to them, the administrator may sell the personal goods and divide the proceeds of the sale equally between the spouse and domestic partner. (4) If a surviving spouse and domestic partner of an intestate do not, within 3 months of the giving of notice to them by the administrator of the intestate estate, agree as to the division of the intestate's personal goods between them, the administrator may sell the personal goods and divide the proceeds of the sale equally between the spouse and domestic partner. (5) The Court may, on application by the surviving spouse or domestic partner of an intestate, make an order that the estate of the intestate be distributed between the spouse and domestic partner of the intestate in such shares as it considers just and equitable. (6) However, if the Court considers it just and equitable to do so, the Court may make an order allocating the whole of the estate to either the surviving spouse or the domestic partner to the exclusion of the other. 107—Spouse or domestic partner not entitled to intestate estate in certain cases Despite sections 105 and 106, a spouse or domestic partner of an intestate has no entitlement to any part of the intestate's estate if, immediately before the death of the intestate, an agreement or order of a prescribed kind relating to the interests in property as between the spouse or domestic partner and the intestate was in force. 108—Distribution among children and grandchildren of intestate The following rules govern the distribution of an intestate estate, or part of an intestate estate, among children and grandchildren of the intestate: (a) if the intestate is survived by a child and by no other issue (apart from the issue of that child)—that child is entitled to the whole or that part (as the case may be) of the intestate estate; (b) if the intestate is survived by children and by no other issue (apart from the issue of those children)—those children are entitled to the whole or that part (as the case may be) of the intestate estate in equal shares; (c) if the intestate is survived by a grandchild and by no other issue (apart from the issue of that grandchild)—that grandchild is entitled to the whole or that part (as the case may be) of the intestate estate; (d) if the intestate is survived by grandchildren and by no other issue (apart from the issue of those grandchildren)—those grandchildren are entitled to the whole or that part (as the case may be) of the intestate estate in equal shares; (e) in any other case—the whole or that part of the intestate estate must be divided into portions equal in number to the number of children of the intestate who either survived the intestate or left issue who survived the intestate and— (i) a child (if any) of the intestate who survived the intestate is entitled to 1 of the portions; (ii) if a child of the intestate died before the intestate leaving issue that survived the intestate—that issue is entitled per stirpem (through all degrees) to 1 of those portions (and if the issue comprises 2 or more persons, they share equally). 109—Distribution among relatives of intestate (1) The following rules govern the distribution of an intestate estate among relatives, or the children of relatives, of the intestate: (a) if the intestate is survived by a single relative of the first degree—that relative is entitled to the whole of the intestate estate; (b) if the intestate is survived by 2 relatives of the first degree—those relatives are entitled to the whole of the intestate estate in equal shares; (c) if the intestate is not survived by a relative of the first degree but is survived by a relative of the second degree or the children of a relative of the second degree, then— (i) if the intestate is survived by 1 relative of the second degree, and by no children of any such relative who predeceased the intestate—the surviving relative is entitled to the whole of the intestate estate; (ii) if the intestate is survived by 2 or more relatives of the second degree, and by no children of any such relative who predeceased the intestate—those relatives are entitled to the whole of the intestate estate in equal shares; (iii) if the intestate is survived by a relative of the second degree, and by children of any such relative who predeceased the intestate—the intestate estate must be divided into portions equal in number to the number of relatives of the second degree of the intestate who either survived the intestate or left children who survived the intestate and— (A) any relative of the second degree who survived the intestate is entitled to 1 of those portions; and (B) if a relative of the second degree died before the intestate leaving a child or children that survived the intestate—the child is entitled per stirpem (through all degrees) to 1 of those portions or the children share the portion equally; (iv) if the intestate is not survived by a relative of the second degree, but is survived by children of such a relative—the intestate estate devolves on those children as if they were children of the intestate; (d) if the intestate is not survived by any relative of the first or second degree, or by children of a relative of the second degree, but is survived by a relative or relatives of the third degree, then— (i) if the intestate is survived by only 1 such relative—that relative is entitled to the whole of the intestate estate; (ii) if the intestate is survived by more than 1 such relative—those relatives are entitled to the whole of the intestate estate in equal shares; (e) if the intestate is not survived by a relative of the first, second or third degree, or by children of a relative of the second degree, but is survived by a relative of the fourth degree, or by children of such a relative, then— (i) if the intestate is survived by only 1 relative of the fourth degree, and by no children of any such relative who predeceased the intestate—the surviving relative is entitled to the whole of the intestate estate; (ii) if the intestate is survived by 2 or more relatives of the fourth degree, and by no children of any such relative who predeceased the intestate—those relatives are entitled to the whole of the intestate estate in equal shares; (iii) if the intestate is survived by a relative of the fourth degree, and by children of any such relative who predeceased the intestate—the intestate estate must be divided in the portions equal in number to the number of relatives of the fourth degree of the intestate who either survived the intestate or left children who survived the intestate and— (A) any relative of the fourth degree who survived the intestate is entitled to 1 of those portions; and (B) if a relative of the fourth degree died before the intestate leaving a child or children that survived the intestate—the child is entitled per stirpem (through all degrees) to 1 of those portions or the children share the portion equally; (f) if the intestate is not survived by any relative of the fourth degree, but is survived by a child or children of 1 or more relatives of the fourth degree—each child is entitled to share per stirpem (through all degrees) in the intestate estate; (g) if the intestate is not survived by a relative of the fourth degree or by children of a relative of the fourth degree, but is survived by a grandchild or grandchildren of 1 or more relatives of the fourth degree—each grandchild is entitled to share per stirpem (through all degrees) in the intestate estate. (2) A person who is entitled to a share or portion of an intestate estate under subsection (1) may disclaim the person's share or portion (and in that case that share or portion of the intestate estate must be distributed as if the person who disclaimed it had died immediately before the intestate). 110—Intestate estate passes to Crown if no surviving beneficiaries (1) If an intestate is not survived by any person entitled to the intestate estate under this Part, the Crown is entitled to the whole of the intestate estate. (2) However, if the Crown is entitled to an intestate estate under subsection (1), the Minister may, on application for a waiver of the Crown's rights, waive the Crown's rights in whole or in part in favour of— (a) dependants of the intestate; or (b) any persons who have, in the Minister's opinion, a just or moral claim on the intestate; or (c) any person or organisation for whom the intestate might reasonably be expected to have made provision; or (d) the trustees for any person or organisation mentioned in a preceding paragraph; or (e) any other person or organisation. (3) The Minister may grant a waiver under this section on such conditions as the Minister considers appropriate. Division 4—Distribution of intestate estates according to Court approved agreements 111—Court may approve distribution of intestate estate in accordance with agreement (1) The Court may, on application by the administrator of an intestate estate, order that the intestate estate, or part of the intestate estate, be distributed in accordance with the terms of an agreement approved by the Court. (2) An order under subsection (1) operates, subject to the terms of the agreement approved by the Court, to the exclusion of all other provisions of this Part governing the distribution of the intestate estate, or part of the intestate estate, to which the order relates. (3) An agreement for the distribution of an intestate estate, or part of an intestate estate, in a manner other than provided for by Division 3 must not be approved by the Court unless— (a) all persons entitled to share in the distribution of the intestate estate, or part of the intestate estate, under Division 3 are parties to the agreement and have been given notice of the application under this section in accordance with the rules; and (b) the Court is satisfied that the terms of the agreement are, in all the circumstances, just. (4) An agreement for the distribution of an intestate estate, or part of an intestate estate, submitted to the Court under this section may provide for shares or portions of the intestate estate, or part of the intestate estate, to be distributed to persons who are not relatives of the intestate by blood. (5) If the Court approves an agreement under this section, the Court may make an order requiring a person to whom property forming part of the intestate estate was distributed before the date of the application to return the property to the administrator of the intestate estate for distribution in accordance with the agreement. Division 5—Miscellaneous 112—Value of intestate estate For the purposes of this Part, the value of an intestate estate must be ascertained by deducting from the gross value of the estate an amount equal to— (a) the— (i) debts and liabilities of the intestate; and (ii) funeral expenses; and (iii) testamentary expenses; and (iv) costs of administering the estate, payable out of the intestate estate; and (b) if the intestate is survived by a spouse or domestic partner—the value of the personal goods of the intestate. 113—This Part not to affect operation of Part 6 Nothing in this Part affects the operation of Part 6 in relation to an intestate estate.