What happens if I die without a will in NSW

If you are an adult living in NSW, and do not have a legal will prepared it can have significant consequences depending on your particular family situation.

As this data from finder shows, more than 50% of NSW residents do not have a will, more than 30% stating they just haven't got around to it yet, so what actually happens if you die without a will? Below we have outlined what happens to your assets and money across a range of specific circumstances if you die without a legal will.

What happens when you die without a will?

Who inherits the deceased's estate, and how much do they get?

Regardless of whether or not you have a will or not, 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.

Does the spouse get everything?

In general, if there's a spouse, then they will get the entire estate except in two situations:

• 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.

Special scenarios

1) If there is a spouse &/or de facto with no issue (offspring):

A person is considered a spouse if they have been in a de facto relationship for at least 2 years prior to death &/or the relationship has resulted in the birth of a child. In legalese this lineal descendant is defined as an "issue", this can be child, grandchild and so on. So, if you die with no child but have a partner, of either sex, they will inherit all of your assets & money. They are however, required to pay the initial purchase price of any property with either inherited money &/or their own money depending on the cost.

2) If there is a spouse & an offspring of that spouse:

The rules above apply in determining whether a person is considered a spouse, having been in a domestic relationship for a length of time as above. Should you pass away, having a spouse and the spouse has their own offspring, (lineal descendant), then your spouse is entitled to all assets and money.

3) If there is a spouse and an offspring from another relationship:

If a person dies leaving a spouse (or spouses) and offspring from another relationship then the law ensure the offspring, regardless of their relationship with the deceased's spouse (or spouses) are entitled to inheritance. The spouse (if spouses it is shared equally) will receive $350,000, indexed to inflation. The spouse is entitled to the deceased's personal effects & one half of the rest of the estate. The offspring will then receive the remainder of the estate.

4) If there is no spouse, only offspring (lineal descendants):

If the deceased passes away and has no spouse but has lineal descendants, children, grandchildren etc, then all of the assets and money are shared equally amongst 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 & 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 Bona Vacantia. This means that the Government is entitled to take all of your money & assets. People who depended on you or organisations that believe you would have wished them to have your assets & 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, then that person gets the entire property no matter what, regardless of what the will or intestacy rules say.

What about de-facto partners?

Note that spouse refers not only to marriage, but also to eligible domestic relationships and de-facto partners. If the deceased did not legally divorce someone and then passed away while in a new domestic relationship, there might be more than one spouse.

• Who qualifies as a spouse or partner?

  A spouse, for these purposes, might be a spouse, a de-facto partner or a domestic partner. If there is more than one of these, then there may be more than one spouse.

  • Spouse. "A person who was married to the deceased immediately before the death or who was a party to a domestic partnership immediately before the death. This does not include ex-spouses."
  • Domestic partner. This is a partner of two years or more, where the relationship has resulted in the birth of a child.
  • De-facto partner. A de-facto partner is determined individually and is based on the duration of the relationship, whether there was a shared address or property and whether there was a mutual commitment.

What about adopted children?

Legally adopted children are considered children of the parents, as normal.

• Who qualifies as a child and how are shares divided among children and siblings?

  • Artificial insemination, IVF and surrogacy. These children are considered to be the children of the parents who raise them.
  • Minors. The share of a minor (under 18) is not deferred to them until they reach the age of 18, or they marry.
  • Deceased children. Any children who passed away at any time, and would have been entitled to a share, have their share split among all surviving siblings.
  • Unborn children. To be eligible for a share, a child must have been born or have been in utero before the intestate's death.
  • Step-siblings. Stepsiblings are considered the same as siblings born to both parents.

If the property ends up with the state, it may distribute the assets to others who might have a valid claim to them or retain them.

What about Indigenous Australians with no will?

If an Indigenous Australian pass away without a will then they can have their estate dispersed as listed above. They also are entitled to have their estate distributed according to the laws, culture, customs & traditions of the Indigenous community. An application is made by the administrator of your estate or by a person who the community deems would be entitled to a part of your estate.

If the Supreme court oversees the distribution of your estate then the intestacy laws listed above do not apply.

There's no will. What happens now?

In order to properly distribute assets, someone needs to be appointed as an estate administrator. This person is then responsible for making sure the estate is distributed correctly in line with the rules set out above.

Before they can start, this estate administrator will need to apply for a grant of administration from the courts. This is essentially a notice which lets them withdraw the deceased's funds from banks, pay back creditors on their behalf and otherwise manage the finances as needed.

Note that a grant of administration will not always be needed.

• If there aren't a lot of intestate assets and there's a clear path of inheritance such as a single spouse, then a grant of administration may not be needed.
• If there aren't a lot of intestate assets and all those involved can agree on how to distribute them, then a grant of administration may not be needed.

• Who can get a grant of administration?

  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.

• I need to distribute an intestate estate. Should I use a lawyer or do it myself?

  It might be a tempting idea not to use a lawyer because their fees will come out of the intestate assets. However, you should consider how confident you are applying for a grant, doing a lot of paperwork, accessing records and doing a thorough check for all eligible inheritors.

  Note that fees will be involved even if you choose not to retain a lawyer, which will be lost should your application be incorrect or unsuccessful. Intestate proceedings are relatively routine for estate lawyers and should generally not incur substantial expense unless there are problems (such as someone contesting the division of assets). Generally, if there are enough intestate assets to warrant getting a grant of administration, one might assume there are enough to cover routine legal expenses.

How to apply for a grant of administration in NSW

1. Conduct a thorough search for a will. 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.
2. 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.
3. 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.
4. 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.
5. 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.