Dying without a Will in NSW

Dying without a valid will, also known as "dying intestate", can create a lot of legal and financial stress for your loved ones during an already difficult time. In New South Wales (NSW), when this happens, the distribution of your assets isn't up to your family or friends—it's decided by a strict legal formula.

So, what exactly happens to your estate if you pass away without a will in NSW? Let's break down the rules of intestacy and why it's so important to have a plan in place.

What is Intestacy?

Intestacy occurs when a person dies without a valid will. This means they haven't legally documented their wishes for how their property, money, and other assets (collectively known as their "estate") should be distributed. In NSW, the rules governing this process are set out in the "Succession Act 2006 (NSW)". The law essentially steps in and acts as your 'will,' but it may not align with what you would have wanted.

Who Gets What? The Order of Distribution

The "intestacy rules" follow a specific hierarchy to determine who inherits your estate. The distribution depends entirely on your surviving relatives. Here's a simplified breakdown:

Spouse, but no children: Your spouse (including de facto partners) gets the "entire estate".

Spouse and children (all from the same relationship): Your spouse gets the "entire estate".

Spouse and children (from a previous relationship): This is where it gets complicated. Your spouse receives your personal effects, a statutory legacy (a set amount that is adjusted for inflation), and half of the remaining estate. Your children from the previous relationship share the other half equally.

Children, but no spouse: The children share the "entire estate" equally. If a child has passed away but has their own children (your grandchildren), that grandchild or grandchildren will take their deceased parent's share.

No spouse or children: The estate goes to your other surviving relatives in a strict order:

1. Your parents.
2. Your siblings.
3. Your grandparents.
4. Your aunts and uncles.
5. Your cousins.

If no eligible relatives can be found, your entire estate will eventually be passed to the State of NSW.

The Process: Letters of Administration

Without a will, there's no nominated "executor" to manage your estate. Instead, your next of kin will have to apply to the Supreme Court of NSW for a "Grant of Letters of Administration". This is a legal document that appoints an "administrator" to handle the estate. This process can be lengthy, costly, and can cause significant delays in distributing assets to your loved ones.

Why A Will is Non-Negotiable

Dying without a will is a risky move that can lead to unintended consequences. It can:

• Cause Family Disputes: The rigid rules of intestacy don't account for complex family situations, estranged relatives, or blended families, often leading to conflict.
• Exclude Loved Ones: Intestacy laws only recognise blood relatives and spouses. Close friends, partners who don't meet the de facto criteria, or charities you wanted to support will receive nothing.
• Add Stress and Cost: The legal process of applying for Letters of Administration and dealing with a complicated estate can be emotionally draining and financially burdensome for those you leave behind.

Don't let the law decide your legacy. Creating a valid will is one of the most important things you can do to protect your loved ones and ensure your wishes are carried out. It offers peace of mind and simplifies the process for your family. Call Eden Lawyers today on (02) 6041 5596 and speak with one of our experienced estate solicitors to secure your future!