My relative has died without a will. Can I inherit?

Some people still believe that if you die without a Will, then your assets pass to the government. This could happen, but it is highly unlikely.

As we are all aware at the moment, in Australia some laws are Federal laws which apply across the nation while others are State laws which vary from state to state.

The law regarding Wills and Estates are state based laws.

If there is no will for a deceased person, all states have a formula which is applied to determine who receives the assets as the next of kin.

In Victoria the list of next of kin is largely logical but can create unexpected outcomes.

• If there is a partner and no children, then the partner takes everything.
• If there is a partner and children from that relationship, then the partner still receives everything (this is different to the law prior to 2017).
• If there is a partner and children born from a different relationship, then the partner receives the personal chattels plus $451,909 (this figure is indexed) and half of the balance. The remaining half is divided between the children.
• If there is no partner, then the Estate is divided between the children. If one child has died and has left behind their own children, then those grandchildren take the share that their deceased parent would otherwise have received.
• If there is no partner, children or grandchildren then the Estate is divided equally between the parents. If there are no parents then it is divided between the siblings, or then aunts and uncles or first cousins.
• If none of the above persons survive you, then your Estate does past to the government. (This is a big change from the situation prior to 2017 when a very distant relative could still inherit.)

One very quirky aspect of the legislation is the definition of partner. If you are married, then that person qualifies as your partner even if you are separated.

If you are not married, then the person is your domestic partner if you have been living continuously for a period of two years up to the date of your death, or if the period is less than two years but there is a child that has been born from the relationship.

Very few people can state with absolute certainty the exact date that a domestic relationship commenced.

It can also be difficult to determine whether a relationship amounts to a “domestic relationship” There are several characteristics which are important to confirm a domestic relationship, but you must be living in the one household as a couple on a bona fide basis. To use a phrase which has been talked about a bit in political circles recently "a close personal relationship" is not the same as a domestic relationship for intestacy purposes.

To make things even more confusing, this definition of domestic partner is different to the test applied in Family Law matters.

Over the years I have dealt with many situations where a person has died without leaving a Will and the application of these tests has resulted in unexpected outcomes. Strange outcomes of the effect of these rules are situations like:

• A gentleman separated from his wife 20 years earlier, but not divorced. He had no children and had not re-partnered. He had never made a Will. Upon his death his brothers and sisters, who were his closest family and were clearly very close to him, did not qualify as next of kin, because the marriage was still in existence. The estranged wife was entitled to receive the entire Estate.
• Four cousins under the test inherited all from an Uncle because they were defined as the next of kin — three of the four had never even met the uncle.
• A third cousin was close to the deceased during his lifetime, but because he had some first cousins on another branch of the family tree, the entire Estate passed to them. The quality of the relationship makes no difference to the intestacy rules.

Sometimes the intestacy rules produce a fair outcome, but there are plenty of situations where the statutory formula is probably not how the deceased person would have wanted their Estate to be distributed.

There is a very simple solution to avoid these weird outcomes. Just make a Will – and don’t just try and make your own will, problems with homemade Wills are just as horrendous as when there is no Will at all.

It is easy to commence the process of making a will — book an appointment online with Russell Robertson or any of the Wills lawyers at OFRM.