Does the Crown really get my estate if I don't write a Will?

Published 04 Oct 2018

Author: Garbis Kolokossian

Many people die without writing a Will in Australia. In fact, as much as half the population passes away before drafting this crucial estate planning document.

A common belief is that dying without a will, otherwise known as 'intestacy', means that your estate automatically passes to the state government (the Crown). Understandably, this is a distressing thought for people who fear leaving their loved ones with no financial security in the event of their death.

But does the Crown really receive your assets when you die intestate? The answer is both yes and no, so let's examine succession laws in NSW to untangle the complexities of intestacy.

Who gets my estate when I die intestate?

Chapter 4 of the Succession Act 2006 outlines the rules that are applied to intestate estates. If you die without writing a Will, the assets are distributed according to a formula based on your surviving relatives.

The primary beneficiary is almost always your spouse or de-facto partner, should you have one. In some circumstances, multiple spouses may be entitled to a portion of the estate. Your children could also be in line for a share of the assets, but only if you don't have a spouse, or your surviving spouse is not the parent of your kids. 

You may not have a spouse or children. In which case, your estate passes in its entirety to other surviving relatives in this descending order:

  • Parents.
  • Siblings.
  • Grandparents.
  • Aunts and uncles.
  • Cousins.

If none of the eligible family members above can be found to inherit your estate, your assets are likely to go to the Crown.

Should I write a will?

You may feel writing a Will is pointless if you have a spouse or children who would naturally inherit your estate under intestacy laws anyway. Nevertheless, officially setting down your final wishes has a number of benefits:

  • Peace of mind for your relatives.
  • Reduces the chance of inheritance disputes after your death.
  • You can leave money and assets to beneficiaries who would not normally receive your estate through intestacy proceedings, such as friends or charities.

However, if your loved one died without drafting a Will, you may not be satisfied with how the estate is due to be distributed under intestacy laws.

Provided your are an eligible person under the Act, you can pursue a family provision claim to receive a share of the deceased's estate. To learn more, please contact Gerard Malouf & Partners Will Dispute Lawyers today to discuss your claim with an experienced contesting Wills expert.

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