Elder
5. Passing Away Without a Will
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 22 Jul 2015
- When someone dies every effort is made to locate a valid will that they have made. If no valid will can be located then the deceased is taken to have died ‘intestate’ which simply means ‘without a will.’
- There are different rules that apply to this situation compared to the distribution of an estate under a valid will. Although there are different intestacy schemes across all jurisdictions in Australia the general rule is that the surviving spouse and children are placed above all other relatives in the distribution order.
- In NSW if a person with no spouse or children dies intestate then the following order of distribution of assets will be followed:
- parents;
- siblings;
- grandparents; and then
- uncles and aunts.
- Australian succession law recognises multiple spouses of an intestate person. The definition of a spouse is someone who was:
- married to the deceased at the time of their death; or
- in a domestic partnership at the time of their death.
- The law defines a domestic partnership as:
- a couple who have registered their relationship under the Relationships Register Act 2010 (NSW);
- a de facto relationship of at least 2 years duration; or
- a de facto relationship where a child has been born of the relationship.
- A reference to ‘issue’ (children) includes a person’s lineal descendants. This includes a person’s natural and adopted children and their children and so on. It does not include stepchildren. However a reference to ‘children’ may include stepchildren.
- There are specific rules of intestacy depending on whether the intestate leaves behind:
- a spouse but no children;
- multiple spouses for example a husband or a wife and a de facto partner;
- a spouse and children of the spouse; or
- a spouse and children of a not-current spouse.
- Because of the need to ensure that any dependants are adequately provided for in the event of a death the law is very specific about intestacy distribution.
- In the absence of a valid will the court will not generally or easily accept your intention to exclude family members from distribution. For example if the intestate told his sister that he wanted all his estate to go to his best friend and not to his estranged son but died before leaving a will then his intention may not be accepted by the court when ordering distribution of his estate.
- As shown in the discussion above the rules around estate distribution if you fail to make a valid will are complex and restrictive. If you have specific wishes regarding who your estate is to be distributed to after your death then you should discuss this with a lawyer.
- Our free Find a Lawyer directory may help put you in touch with the assistance you need.
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