What happens when a loved one dies without a Will?

There are many reasons that someone may not create a Will before they die, and it can leave behind some legal consequences when it comes to administering the estate and their assets.

When a person dies without a Will, they are known as ‘intestate’.

In New South Wales, there is a statutory regime to decide what happens to an intestate’s assets when they die. 

Intestacy Rules 

The laws that govern how estates can be distributed is called the Succession Act 2006 (NSW) and it sets out an order of priority of the person’s next of kin to determine who is entitled to the deceased’s persons estate.

1. If the deceased person leaves behind a spouse and no children, then the spouse takes the entire estate. 
   

   1A. If the deceased person leaves behind a spouse and children, then the spouse takes the entire estate if the children of the deceased person are also the children of the spouse. 

   1B. There is a different mechanism when there are children of the deceased person that are not also the children of the spouse (e.g. the spouse left behind is a step-parent to the children of the deceased person)

2. If there is no spouse but there are children, then the children take the entire estate in equal shares. If a child dies before the deceased parent and that child leaves children, then the grandchildren of the deceased person take their parent’s share in equal shares. 
3. If there is no spouse and no children, then the assets of the deceased person/intestate go to any living parents. 
4. If there is no spouse, no children or grandchildren, no parents, then the assets of the deceased person go to their siblings. 
5. If there is no spouse, no children or grandchildren, no parents and no siblings, then the assets of the deceased person go to their grandparents.
6. If there is no spouse, no children or grandchildren, no living parents or siblings, and no living grandparents, then the assets go to the aunts and uncles of the deceased person, but otherwise to their children, who are the first cousins of the deceased person.
7. If all of these options have been exhausted and there is no living people in the above categories entitled to receive the estate, then the estate is said to be bona vacantia which means in Latin “ownerless goods” or “vacant goods” and the government has rights to the property.  

Family Provision Claim 

If you are not a person listed above as entitled under the statutory order of priority on intestacy, you may consider making a family provision claim, provided you are eligible to make a family provision claim.  

A family provision claim can be made whether:

• you have been left out of a Will or
• adequate provision has not been made for you in the Will or
• where the deceased did not have a Will, and you do not receive provision because of the operation of the rules of intestacy (as above)

If you are considering making a family provision claim, it is important to seek legal advice as soon as possible.

Our Wills and estates lawyers will listen and provide advice and guidance to manage the process respectfully. Contact us to find out how we can help.