The Intestacy Rules

When a person in NSW dies without a valid Will they are referred to as dying intestate. The Succession Act 2006 (NSW) outlines the rules of intestacy, which determines how the estate of the deceased is distributed. This is based on the family relationships of the deceased.

Where the deceased has a spouse, but no children the entire estate goes to the spouse. If the deceased leaves a spouse with children from the current relationship, then the spouse still receives the entire estate. If, however, the deceased has children from a past relationship, then the spouse will receive the personal effects of the deceased, a statutory legacy and half of the residuary estate. A statutory legacy is a fixed amount that is adjusted for inflation. In this situation, the children of the deceased receive the other half of the estate, which is divided equally amongst all the children.

If the deceased leaves multiple spouses, for example a married spouse and a de facto partner or multiple de facto partners, with no children, then the estate is divided among the spouses.

If there are multiple spouses and children of the deceased, then the spouses share the personal effects of the deceased, as well as receiving a statutory legacy each and a share of one-half of the estate. The other half of the estate is distributed equally among the children.

A legally divorced spouse has no entitlement to the estate under the intestacy rules.  A fiancée may be entitled to a share of the estate, if the couple were living together at the time of the death.  

If deceased has no spouse, but has children, then the entire estate is divided equally amongst their children. If there is no spouse or children, the intestacy rules state the following order of priority:

1. The parents of the deceased will receive the share of the estate or the whole of the estate if only one parent is alive.
2. The siblings of the deceased receive an equal distribution of the estate. If any of the siblings have died but leave behind children (the nieces and nephews of the deceased), then those children receive their parent’s share.
3. The grandparents will receive the estate if there are no siblings or descendants of the siblings. The estate is divided equally between grandparents.
4. Where there are no surviving grandparents, the estate is divided equally between the deceased’s aunts and uncles or the children of the aunts and uncles (the first cousins of the deceased).

Where the deceased has no surviving relatives, the estate goes to the State of New South Wales.

The rules of intestacy can be complex. It is recommended that you seek legal advice if you believe that you are entitled to a share of an estate under the intestacy rules. Contact us for a free thirty-minute consultation.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.