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What happens if you die without a will (NSW)

Everything you need to know if you don’t have a will or testament in NSW

If you die without a will, you leave what is called an "intestacy". This is a legal term meaning you haven't properly disposed of all your assets. If you don't have a will when you die, your assets and debts get distributed by the state government based on a legal formula. This can mean that they don't go to the person you want them to and you don't get to decide who distributes them.

What happens if you don't have a will in NSW?

If you die without a will in Australia, your death is classed as intestate. This means that your assets are allocated by the state government and can be distributed how it best sees fit. If you want to make sure that your assets are handled in a specific way, the best way to do this is by having a will. We put together this short video to help explain what can happen when you die without a will.

What is intestacy?

Intestacy is a legal term that applies to your estate if you die without a valid will. Intestacy essentially means that you haven't made any formal arrangements to dispose of your property, assets and debts when you die. If this happens to you, intestacy laws have a specific way of distributing your assets when there's no will. This process is very specific and there's a good chance that it won't reflect your personal wishes, so it's definitely worth taking steps to ensure this doesn't happen.

Who inherits the estate if there is no will?

Regardless of whether or not you have a will, the first people who get taken care of are creditors or people who the deceased owes money to. All debts need to be repaid including the following:

  • Funeral expenses
  • Taxes
  • Debts to any financial institutions or other lenders
  • Any outstanding administrative or legal expenses

After this, any assets specified in a will are distributed as requested. Anything not mentioned in a will is then distributed according to the intestate laws.

The intestate order of inheritance in NSW

The general order of inheritance is as follows:

1. Spouse
2. Children and grandchildren
3. Parents
4. Siblings
5. Grandparents
6. Aunts and uncles
7. Cousins
8. The state

It typically runs down the line until an eligible inheritor is found, at which point the estate is divided evenly among everyone at that level. Anyone who does not survive the deceased by at least 30 days is not considered to be an inheritor.

One exception to the above is if the deceased is an Indigenous person. In that case, indigenous customary law overrides intestacy law and the order is subject to exclusion or modification based on the customs, laws, practices and traditions of the indigenous group.

Does the spouse get everything?

In general, yes. The spouse will get the entire estate:

  • If there are no children
  • If the children are the spouse's children

The only situations in which they may not get the entire estate are when:

  • The deceased had children, but not with the spouse
  • There is more than one spouse
  • The deceased owned property as a joint tenant with someone else
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Scenarios of inheritance

1. If there is a spouse or de facto

A person is considered a spouse if they have been in a de facto relationship for at least 2 years prior to your death or if the relationship has resulted in the birth of a child.

2. If there is a spouse and a child of that spouse

Should you pass away, and have a spouse and a child with your spouse (lineal descendant), then your spouse is entitled to all assets and money.

3. If there is a spouse and a child from another relationship

If a person dies and has a child from another relationship, they will be entitled to inheritance. The spouse is entitled to the deceased's personal effects and one-half of the rest of the estate. The offspring will then receive the remainder of the estate.

4. If there is no spouse and only children (lineal descendants)

If the deceased passes away and has no spouse but has children or grandchildren (lineal descendants), all of the assets and money are shared equally among the descendants.

5. If there is no spouse, no offspring, only relatives up to cousins

If the deceased passes away with no spouse or offspring then the assets and money will be dispersed equally to their parents. If there are no parents it passes to grandparents, then to siblings, aunts and uncles or down to first cousins. The estate is shared equally irrespective of full or half blood status of the relatives.

6. If there is no spouse, no offspring and no relatives

If you pass away and have no spouse, no offspring and no living relatives to inherit your assets then it is classed as "Bona Vacantia". This means that the government is entitled to take all of your money and assets. People who depended on you or organisations that believe you would have wished them to have your assets and money can petition the government to waive their right to your estate.

What happens if there is a joint-tenant on a property?

If the intestate-owned property is owned with someone else as a joint tenant, that person gets the entire property no matter what, regardless of what the will or intestacy rules say.

How do you know if someone left you in their will?

In most cases, the executor of the will should get in touch with you based on instructions and information given to them in the will of the person who has died.

If nobody gets in contact with you but you feel you might be a beneficiary, there are a few options you can take. You can:

  • Get in contact with the deceased's solicitor
  • Get in contact with a trusted friend or family member
  • Place an advertisement in newspapers or the journal of the law society so the solicitor can get in touch with you if they don't have your details and you're in the will

What is a grant of administration?

A grant of administration is a legal document issued by the court which gives individuals the right to distribute the deceased's assets. This person is then responsible for making sure the estate is distributed correctly in line with the rules set out above. In most cases, a grant of administration is handed out if you die without a will.

Generally, the only people who can get a grant of administration are those who have good reason to get one, such as a lawyer hired by an inheritor or someone in line to get a portion of the estate.

Applications need to include detailed information about the estate, and the administrator will have to do a lot of groundwork before they can get access to the deceased's property in order to distribute it.

How to apply for a grant of administration

  1. Conduct a thorough search for a will.
  2. You will need to take a thorough look through the deceased's personal papers, consult the state supreme court (where wills may be lodged), consult any solicitors the deceased may have engaged, check with any banks where they held accounts and contact the state government trustee association.
  3. Get certificates. You will need to get a death certificate, and you may also need certification of your relationship to the deceased in order to succeed in your application.
  4. Lay out who is entitled to what. Your application needs to specify who is entitled to a share of assets under intestate law. Generally, everyone mentioned here may be entitled to apply for a letter of administration and they can agree between themselves who should apply for a grant.
  5. Advertise your intention to apply and then wait. You now need to advertise your intention to apply for a grant of administration on the state registry. You will then need to wait at least two weeks. This is so other people with an interest in the estate, like creditors, other eligible relatives or someone who might know of the existence of a will, can have a chance to get involved.
  6. File the paperwork. Once you've completed all the above steps, you can actually file an application for a letter of administration. The things you need to include in an application and the forms to fill out may vary depending on the situation.

What types of assets can be inherited from a deceased estate?

Some of the assets which can be inherited from a deceased estate include:

What happens if you die without a will in other states in Australia?

Every state has its own laws regarding wills. Here's where to find out more information about your state's laws if you don't have a will:

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