Who receives my loved one's estate if they didn't write a will?

Published 06 Jul 2017

Writing a will is a key part of the estate planning process. This crucial document outlines how you'd like your assets distributed to beneficiaries when you pass away.

Nevertheless, many people in Australia fail to produce a will. Research suggests that between 45 and 50 per cent of individuals haven't formally set out their final wishes for their estate, potentially leaving their assets open to inheritance disputes.

So what happens if your loved one dies without a will? Known as 'intestacy', the process can be confusing and stressful for friends and relatives of the deceased, particularly those who were partly or wholly dependant on them.

Let's take a closer look at intestacy and how it affects the distribution of an individual's estate.

Who gets the estate?

When someone is judged to have died intestate, the individual's assets are passed on according to a formula based on family trees.

The Supreme Court of NSW will appoint an administrator to the deceased's estate who will establish the individual's closest living relatives and obtain certification evidence to prove the relationship.

According to NSW Trustee & Guardian, identifying next of kin can be an expensive and time-consuming task, particularly if the person has loved ones living overseas.

The formula for distributing the estate can be quite complicated depending on the deceased's previous marital relationships and number of children.

Typically, if someone is married at the time of their death - whether they have children with that person or not - the spouse receives the entirety of the estate.

If there are multiple spouses or the deceased has children from a previous relationship, the estate is shared to varying degrees between surviving partners and children.

In situations where the deceased has no spouses or children, the estate is left to, in descending order, the individual's:

  • Parents;
  • Siblings;
  • Grandparents;
  • Aunts and uncles; and
  • First cousins.

Intestacy in NSW

Intestacy rules don't just apply when someone hasn't written a will. There may be situations where a court decides that an individual has died intestate because:

  • Their will is invalid;
  • They did not have the testamentary capacity to write one; or
  • The will didn't account for all their assets.

In some cases, parts of the will may be valid and others not, which can create even further confusion, expense and delays regarding the distribution of the estate.

As such, people are typically advised to enlist the services of a lawyer when estate planning to ensure their will is written according to the state's requirements.

However, if you'd like to pursue an inheritance dispute against an estate that has been distributed according to intestacy rules, please get in touch with Gerard Malouf & Partners Will Dispute Lawyers.

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