Intestacy Rules NSW

When someone dies without a will in NSW, their assets are distributed, as per intestacy laws. The formulated process calculates who is a beneficiary and follows a specific guideline, not the deceased person’s wishes. Find out more about intestacy rules in NSW, who is an eligible beneficiary, the rules, and what happens when there is no will. Let’s take a closer look.

What Is Intestate?

Intestacy is when someone dies and they have not made a will, or their will is invalid. The specific rules and intestacy laws dictate how their assets are distributed, and the formula to follow. Dying intestate means a person has no control over who receives their assets after death. Their whole estate is distributed, as per the state law. Having a valid will means that surviving relatives are given clear instructions of the person’s wishes and preferences for distribution of the estate, without leaving further burden on family members after their death.

What Circumstances Lead To Intestacy?

Dying without a will may not always be intentional, and sometimes, a will can not be located, or one has been made but is declared invalid. There are several reasons why a person may die intestate, such as the following:

• Believing they have insufficient assets
• Fearful of death
• Apathy – intended to create a will but never did
• Indecision regarding distribution, guardianship or executor duties
• Loss of original will
• Invalid will
• Revocation of a will via second marriage

What Makes A Will Invalid?

When a person prepares their will, the correct legal process must be followed, as this will help ensure that it remains valid in the event of their death. A will must be declared valid before assets can be distributed to beneficiaries. Several circumstances can lead to a will becoming invalid, including the following:

• The will is not signed or legally witnessed correctly
• The will is incomplete and does not effectively dispose of the assets
• The willmaker did not have the mental capacity to understand the legal document
• The will was not legally constructed and was poorly drafted

What Are The Rules Of Intestacy Law?

When a person dies intestate, the distribution of their estate is done by following a predetermined guideline, the rules of intestacy. The specific formula states the priority and order of who benefits from the deceased estate and to what degree. The Succession Act 2006 contains the distribution rules, which are as follows:

• A current spouse, de facto partner or domestic partner has priority over other family members for a share of the intestate estate
• A spouse is entitled to the entire estate if there are no children or children from a previous spouse
• Children of a former spouse are entitled to half of the estate. and the current spouse is entitled to the deceased’s personal effects, and the other half
• Children are entitled to the estate in equal shares if there is no surviving spouse
• Other relatives, such as siblings, the deceased’s parents, and grandparents are entitled to equal shares if there is no spouse or children
• All the assets become the property of the New South Wales government if there are no other persons entitled to a share of the intestate estate

Indigenous Australians And Intestacy

Intestacy laws can have limitations for certain members of our community, particularly for cultural groups such as indigenous Australians. If a person is an indigenous Australian, they may wish to have their assets distributed, as per cultural customs, traditions and practices of their community, and recognise their informally adopted children. Applications can be made to the Supreme Court to override the intestacy rule, to make a judgement that allows the deceased person to follow their aboriginal customs and traditions.

What Is The Definition Of Spouse

Understanding the definition of a spouse is particularly relevant when it comes to Succession Law, as the closest next of kin, the spouse is entitled to the whole of their deceased partner’s estate. In New South Wales, a spouse includes a person in a marriage, or domestic partnership – including de facto and registered. A person who is separated, but not divorced from their spouse at the time of their death will be eligible for their estranged spouse’s estate, as they are still considered married. A de facto relationship must have lasted for at least two years, or have produced a child to qualify for the status. A genuine domestic relationship is determined by; the length of the relationship, cohabitation status, shared responsibilities, financial interdependence, sexual activity and level of commitment.

Letters Of Administration

Letters of administration are legal documents that provide formal approval for someone to administer a deceased estate. When a person dies intestate, the Supreme Court will grant letters of administration to the individual managing the estate, usually the spouse or beneficiary with the most entitlement to the deceased’s estate. Applications for letters of administration are made to the Supreme Court when there is no will. If there is a valid will, a grant of probate application will be made, and an executor will be responsible for administering the deceased’s estate.

What Happens If There Is No Spouse Or Living Relatives?

When someone dies without a will, the rules of intestacy state the order for distribution of the deceased estate and personal effects. If a person dies in New South Wales without surviving children, spouse or any other relatives, the assets of the estate become the property of the state government.

Summary

Dying intestate means a person can not control who receives their assets after death. The whole estate is distributed as per the state law. The specific formula states the priority and order of who benefits from the deceased estate and the distribution rules. When someone dies intestate, the Supreme Court will grant letters of administration to the individual managing the estate, usually the spouse or beneficiary with the most entitlement to the deceased’s estate. If a person is an indigenous Australian, they may wish to have their assets distributed, as per cultural customs, traditions and practices of their community, and recognise their informally adopted children. Having a will means that surviving relatives can be given clear instructions of a person’s wishes and preferences for distribution of the estate, without leaving further burden on family members after their death.

FAQs

What Is The Rule Of Intestacy In NSW?

When someone dies intestate, the distribution of their estate follows a predetermined guideline, the rules of intestacy. The specific formula states the priority and order of who benefits from the estate and to what degree. The Succession Act contains the rules for the distribution of the intestate estate. A current spouse, de facto partner or domestic partner, and children from a previous relationship have priority over other family members for a share of the intestate estate. Relatives, such as siblings, the deceased’s parents, and grandparents are entitled to equal shares if there is no spouse or children.

What Happens If You Die Without A Will In Australia?

Intestacy is when someone dies and they have not made a will, or their will is invalid. Specific rules and intestacy laws dictate how their assets are distributed, and the formula to follow. Applications for letters of administration are made to the Supreme Court when there is no will. When a person dies without a will, the Supreme Court will grant letters of administration to the person managing the estate, usually the spouse or beneficiary with the most entitlement to the deceased estate. Dying intestate means that a person has no control over who receives their assets after their death the whole estate is distributed as per the state law.

What If There Are No Beneficiaries To An Estate?

When someone dies without a will, the rules of intestacy state the order for distribution of the deceased estate and personal effects. If a person dies in New South Wales without surviving children, spouse or any other relatives, the assets of the estate are inherited by the state and become the property of the New South Wales government.