What does it mean to die intestate?

Published 30 Jun 2015

Author: David Cossalter

Writing a will is essential, otherwise you run the risk of dying intestate. This is the technical term for passing away without having formally stated your wishes as to where your assets should be distributed.

Why people don't write a will

There are various reasons why a person might not write a will. These include, but are not limited to, the following:

  • The person is mentally incapable of putting together a will
  • A previous will is invalid because it was not signed and witnessed in accordance with the law
  • The will doesn't allow assets to be properly distributed
  • The will was not put together in a way that was legally compliant
  • The person simply never got around to doing it

No matter what the reason for there not being a legally recognised will, it can cause significant problems for the deceased's family further down the line.

Dying partially intestate

It is possible to die partially intestate. This means that certain sections of the will are valid, whereas others are not.

For example, it might be that some of a person's assets are distributed in line with their wishes, while others are not fully accounted for. In the event of someone dying partially intestate, legislation outlined in the Succession Act 2006 (NSW) and subsequent amendments will come into effect.

What happens when a person dies intestate

Changes to intestacy laws were introduced in New South Wales on March 1 2010, which apply to anyone who died without a will on or after this date. These rules mean that anyone who wants to benefit from the intestate estate must survive the deceased by 30 days.

Not only this, a person who dies intestate and has no children will see their entire estate left to their spouse or domestic partner. Meanwhile, when an intestate dies leaving a spouse and children from a previous relationship, the surviving spouse won't be automatically entitled to the estate.

The most effective way to avoid this situation arising is to write a legally compliant and up to date will. Failing that, contesting a will could be the only option.

It is no longer safe to assume that the people who you want to inherit your estate will automatically be entitled to it, which is why you will need to take your own action.

For help with contesting a will, be sure to get in touch with our team today.

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