If you pass away and do not have a will or you have an invalid will, you are considered as dying ‘intestate’. This means that your assets will be distributed amongst surviving relatives in accordance with the procedures set out in the Succession Act 2006.

Who is entitled to inheritance in intestacy?

There is a hierarchy of people who are entitled to inherit if someone dies without a valid will. However, the inheritance is not divided among all applicable categories.  Rather, it is divided amongst the first category that satisfies the test of relationship. In order of priority these are:

  1. Current spouse (marriage, de facto or domestic relationship) ;
  2. If there are children of the deceased who are also children of the spouse, the spouse takes the entire estate.
  3. If the deceased leaves a spouse and children who are not children of the spouse, the spouse is entitled to:
    • the deceased’s personal effects;
    • a statutory legacy;
    • one half of the remainder (if any) of the deceased’s estate. The remaining one half of the balance of the estate is distributed to the children of the deceased equally.
  4. If any children of the deceased predecease the deceased, then that child’s children will receive the share their parent would otherwise have taken.
  5. Parents of the deceased; or
  6. Brothers and Sisters of the deceased; or
  7. Grandparents of the deceased; or
  8. Aunts and Uncles of the deceased; or
  9. The New South Wales Government, who then can decide to pay the estate to;
    • A dependent of the deceased;
    • A person who has a moral claim to the money;
    • An organization or person who the deceased might have reasonably expected to make a provision for in their Will;
    • The trustee of any person above, and failing such a determination-to the government coffers.

Intestacy can be problematic as the distribution of assets may not be in line with how you would like your assets divided once you pass.

Ordinarily, when a person has passed away and made a valid will during their lifetime, the executor is required to apply to the Supreme Court of New South Wales for a grant of probate.  When a person passes away without a will, the proposed administrator of the estate (usually one or more of the beneficiaries of the estate according to the rules mentioned above) is required to apply to the Court for a grant of letters of administration.  The Court requires additional steps to be undertaken in respect of an application for a grant of letters of letters which can cause delay and additional  expense in the administration of the deceased’s estate.

Importance of writing a Will

A will can be made by any person over the age of 18 years who has mental capacity to do so. Wills are important as they set out your wishes for your estate after you pass and can assist to minimize dispute or ambiguities amongst family when it comes time to distributing your estate.

It is important to ensure that your will is valid. This means that your Will must be:

  • In writing ;
  • It must be signed by the testator; and
  • The testator’s signature must be witnessed by two other independent people, who not beneficiaries or the spouse of a beneficiary and who are present at the same time and who must also sign the Will.

It is important that you have your Will properly drafted by a solicitor to ensure that it is valid and that your estate is distributed according to your wishes.   The laws surrounding the constructions of wills can be complex and an improperly drafted will can have unwelcome consequences for the distribution of an estate.

WMD Law has a team of experienced and dedicated Lawyers who can assist with writing your will or updating an existing Will. Please do not hesitate to contact our Will and Estate experts on 9525 8688 or email info@wmdlaw.com.au.  We also invite you to download our free Estate Planning eGuide.