What happens if I die without a Will?

When a person dies without a Will it is known as dying intestate. If you die without a Will, the government decides how your estate will be divided under the rules of intestacy in the Succession Act NSW 2006. Like any legislation these rules can be changed by the State Government at any time. Having a Will typically makes it much easier for your family and friends once you die. It is usually much cheaper and faster for the beneficiaries of your Will to gain access to the funds of your estate.

If you die without a Will, depending on the size or types of assets, an application may need to be made to the Supreme Court for Letters of Administration.  Once this has been granted, the estate of the deceased person is divided up between relatives in accordance with the rules of intestacy. This can mean that relatives who may not have had contact with you, are entitled to some or even all of your estate.

The following provides a list of examples of where the intestacy rules can create an unfortunate outcome.

• Susan met Gary at university, and they went on a trip to Las Vegas where they decided on a whim to get married. The relationship ended not long after their return to Australia. As they were poor university students with no assets, they did not see a lawyer or finalise the divorce papers. Susan then met John, the love of her life. They bought a home and raised a family together, but never got married. Unfortunately, Susan died without a Will. As a result, her estate is divided in half with fifty per-cent of her assets going to John and their two kids but the other fifty per-cent of her assets going to Gary.

• Fred proposed to Ginger, and they got engaged. They decided not to live together until they were officially married. Fred died without a Will before he married Ginger. Ginger is not deemed under the law to be in a de facto relationship with Fred, and therefore, Ginger was left with nothing as Fred’s estate is divided amongst his relatives.

• Jerry had a short-term relationship resulting in the birth of a child. Jerry then married Elaine. Jerry had little contact with his child but provided financial support until the child had grown up. Unfortunately, Jerry died without a Will. Under the Succession Act 2006 (NSW), Elaine his wife for over twenty years was granted from his assets a statutory legacy of just over $500,000 but had to share the remainder of his estate with Jerry’s child.

• Michael’s first wife died leaving him a widower and he had children from that marriage. Michael did a Will leaving everything to his children. After the kids had grown up, Michael remarried but he never updated his Will. The Will he had during his first marriage is unfortunately legally revoked when he remarried. He died intestate without a valid Will. Most of his estate went to his second wife. His children from his first marriage were left to divide the small amount left in his estate.                        

The best way to avoid something like this happening to your family is by ensuring you have a valid Will. If you would like to be sure that certain members of your family are full beneficiaries of your estate, we recommend that you speak to someone who specialises in Wills and Estate Planning.

Contact us for a free thirty-minute consultation with a Wills and Estates Lawyer.

Photo by Melinda Gimpel on Unsplash

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.