Dying without a will can leave loved ones facing uncertainty and stress. In NSW, the Succession Act 2006 (NSW) actively governs the distribution of a person’s estate when they pass away intestate. This article explores what happens in such cases, who inherits under intestacy laws, and why having a valid will is essential.
The Role of Intestacy Laws
When a person dies without a will, also known as dying intestate, their estate is distributed according to the Succession Act 2006 (NSW). The rules under the Succession Act prioritise family members, starting with the deceased’s spouse or domestic partner and extending to children, parents, siblings, and other relatives. The court strictly applies these rules, regardless of any informal expressions the deceased might have made during their lifetime.
Who Inherits Under Intestacy Laws?
- Spouse: The spouse of the deceased is given priority. If the deceased leaves behind a spouse and no children from another relationship, the spouse will inherit the entire estate.
- Spouse and Children: If the deceased has children from a prior relationship, the estate is divided. The spouse receives a statutory legacy (a set monetary amount, adjusted annually for inflation), the deceased’s personal effects, and a share of the remaining estate. The children receive the balance, divided equally among them.
- No Spouse or Children: If there is no surviving spouse or children, the estate passes to the deceased’s parents. If the parents are not alive, the estate goes to siblings, followed by nieces and nephews, grandparents, aunts, uncles, and cousins, in that order of priority.
- No Relatives: If no eligible relatives can be found, the estate passes to the NSW Government. This is known as bona vacantia. While the government may sometimes use these funds for public purposes, individuals with a legitimate claim can apply for consideration.
What About De Facto Relationships?
In NSW, de facto partners, including same-sex partners, have the same rights as married spouses under intestacy laws. However, proving a de facto relationship can sometimes be complex and may involve providing evidence of a shared life, financial dependence, and domestic arrangements.
Guardianship of Minor Children
If the deceased leaves behind minor children and no surviving parent or legal guardian, the court may appoint a guardian to care for them. While the court prioritises the best interests of the children, this process can be stressful for surviving family members.
Administration of the Estate
When someone dies without a will, the court appoints an administrator to manage the deceased’s estate. This process involves applying to the NSW Supreme Court for a grant of letters of administration.
Challenges and Disputes
Intestacy can lead to disputes among family members, particularly where:
- The deceased’s relationships were complex or estranged.
- A de facto partner’s status is contested.
- There are competing claims from individuals not recognised under intestacy laws.
The court may need to resolve these disputes, which can delay the administration of the estate and reduce its value due to legal costs.
Avoiding Intestacy
Dying without a will can lead to complications and disputes among family members. Creating a legally valid will ensures that your wishes are followed and spares your loved ones the stress of intestacy. A will allows you to:
- Appoint an executor of your choice to manage your estate.
- Specify how your assets should be distributed.
- Nominate a guardian for your minor children.
- Provide for individuals who may not be recognised under intestacy laws, such as stepchildren, friends, or charities.
Updating Your Will
Life events such as marriage, divorce, the birth of children, or acquiring significant assets may affect your will. In NSW, marriage automatically revokes a will unless it was made in contemplation of marriage. Similarly, divorce may invalidate certain provisions. Regularly reviewing and updating your will ensures that it reflects your current wishes and circumstances.
Conclusion
Dying without a will can leave loved ones facing uncertainty, stress, and potential disputes. By taking the time to draft a legally valid will, you ensure that your wishes are honoured and that your family is protected from unnecessary legal complexities. If you need assistance preparing or updating your will, contact us here.
