Can I Make a Claim on an Estate When there is No Will?

Published 21 Apr 2015

Author: Richele Nelsen

What happens when somebody dies without a Will? This is called dying intestate and is governed by the Succession Act 2006 in New South Wales and similar Acts in other states. In New South Wales if a person dies without a Will (that is, dies intestate) there is a set formula for how their estate will be distributed. This often begs the question “Can I make a claim on an estate when there is no Will?”. The short answer to this question is yes, this will be discussed in further detail below.

In New South Wales if you die without a Will and you leave a spouse and no children or grandchildren the entirety of your estate will pass to your spouse. If you die with a spouse and children, your spouse will receive a lump sum from the estate plus 50% of the remaining estate value. The rest will be divided equally amongst the deceased’s children.

If a person dies without a spouse, but with children the estate will be equally divided amongst those children. There are many other ways in which the estate can be divided up depending on the family circumstances of the deceased person.

So what happens if you don’t receive provision because of the intestacy laws? Or what if the amount you are to receive is not sufficient? If you are an eligible person (please refer to our article “Contesting a Will in New South Wales – Who Can Make A Family Provision Claim?” to see who is classed as an eligible person) you can still make a claim on the estate. This claim is the same as if you were left out of a Will or not provided for sufficiently in a Will. This means, you can make a claim on the estate for further provision by establishing your needs to have been provided for.

Just because there is no will, this does not prevent you from making a claim on an estate. Family provision claims can be brought to challenge a will or to challenge intestacy provision.

If a loved one has died without a Will leaving you with little or no provision from his or her estate contact our experienced Contesting Wills Lawyers today on 1300 768 780.

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