No Will in the ACT: Intestacy Rules and Letters of Administration

When someone dies without a Will in the Australian Capital Territory, the estate doesn't go to the government and it doesn't distribute itself. Instead, the Administration and Probate Act 1929 provides a fixed formula that determines exactly who inherits. The problem is that this formula doesn't always reflect what the deceased would have wanted — and for blended families in particular, the consequences can be financially devastating.

If you're dealing with an intestate estate in the ACT, understanding the legal framework before you take any action is essential.

Who has the right to administer an intestate estate?

Without a Will, there is no appointed executor. Someone must apply to the ACT Supreme Court for Letters of Administration, which grants them the legal authority to collect assets, pay debts, and distribute the estate.

The priority for who can apply is set by law:

1. Surviving spouse or domestic partner (of at least two years)
2. Children
3. Parents
4. Siblings
5. More distant relatives

If nobody applies, or if family disputes prevent agreement, the ACT Public Trustee and Guardian can be appointed as administrator. This triggers their commission structure (4.4% on the first $300,000 of estate value), so it's worth understanding whether a family member can and should apply.

The ACT intestacy formula

The distribution formula under the Administration and Probate Act 1929 works as follows when the deceased leaves a surviving spouse and children:

The surviving partner receives:

• The entire estate if there are no children, or if all children are also children of the surviving partner (i.e., no children from previous relationships)
• If the deceased had children from a previous relationship: the first $200,000 plus 8% interest per annum calculated from the date of death, plus one-third of the remainder

The children receive:

• Nothing if they are all also children of the surviving partner
• Two-thirds of the remainder (divided equally among them) if any child is from a previous relationship

The $200,000 priority share is a fixed statutory legacy — it doesn't adjust for the size of the estate. In a $600,000 estate, the surviving partner of a blended family would receive $200,000 plus interest, plus one-third of the $400,000 remainder ($133,333) — a total of roughly $333,000 plus interest. The remaining $267,000 goes to the children.

Why blended families face forced property sales

The problem is liquidity. Most of the estate's value is often tied up in the family home. The intestacy formula may require the surviving partner to pay out children's shares in cash — cash that doesn't exist without selling the property.

A surviving partner who has lived in the family home for decades can find themselves forced to sell because the statutory formula requires the children (who might be adults from a previous marriage) to receive their share. This isn't theoretical — it happens regularly in the ACT's probate courts.

If you're in this situation, legal advice before you file anything is not optional. An experienced solicitor may identify ways to structure an arrangement that respects the statutory formula while minimising disruption, or can advise whether the surviving partner has grounds to seek a different outcome.

Letters of Administration: the application process

The process for obtaining Letters of Administration mirrors the probate process in most respects:

1. Publish a Notice of Intention to Apply on the ACT Supreme Court's online portal ($61 fee). You must then wait a minimum of 14 days before filing the formal application.

2. File the application using Forms 3.3, 3.6, 3.13, and 3.14. Unlike a probate application, you don't have an original Will to submit — instead, you include an Affidavit of Search confirming that a diligent search has been conducted and no Will exists.

3. Administration Bond: In some intestate cases, the Court may require the administrator to lodge a bond (Form 3.21) — a form of security that protects beneficiaries if the administrator misappropriates funds. This is more common in contentious estates.

4. Filing fees: Same tiered structure as probate — free under $50,000; $1,124 for $50,000–$249,999; $1,420 for $250,000–$499,999.

The Affidavit of Search: proving no Will exists

Courts require more than your word that the deceased left no Will. The Affidavit of Search must detail:

• Searches conducted of the deceased's personal papers, computers, and safe deposits
• Whether a solicitor was contacted who may have held a Will
• Whether the ACT Public Trustee's Will Register was checked
• Whether any banks, financial advisors, or family members held documents

A superficial search that is later found to have missed a valid Will can result in the administration being revoked and serious legal complications. If there is any doubt, check the Public Trustee's Will Register before filing.

Small estates: the $150,000 PTG election

If the intestate estate is valued at under $150,000, the ACT Public Trustee and Guardian has statutory authority to administer it via an "election to administer" — a process that bypasses the Supreme Court entirely. This is faster and cheaper than a formal Letters of Administration application. If the estate is genuinely small and uncomplicated, it's worth asking the PTG whether this pathway applies.

What administrators must do differently from executors

An administrator under intestacy follows the same general duties as an executor — collect assets, pay debts in priority order, distribute the balance — but distributes according to the statutory formula rather than a Will. They are subject to the same personal liability rules: distributing assets before the six-month family provision window closes, or before publishing a Notice of Intended Distribution, creates serious personal financial risk.

The ACT Estate Settlement Guide covers the full intestacy formula in detail, the Letters of Administration application steps, and how to navigate blended family situations before they become a legal dispute.

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