What happens if you die without a Will in NSW?

When a person dies without a valid Will, they are said to have died "intestate". Instead of following your wishes, a set of rules in the Succession Act 2006 (NSW) decides who receives your estate and in what shares.

Who inherits if there is no Will?

The rules depend on who survives you. In broad terms:

• if you leave a spouse or de facto partner but no children, your partner generally receives the whole estate;
• if you leave a partner and children who are all also your partner's children, your partner generally receives the whole estate;
• if you leave a partner and some of your children are from another relationship, your partner receives your personal effects, a statutory legacy (a fixed sum that is adjusted from time to time) and a share of what remains, and your children share the rest;
• if you leave children but no partner, your children share the estate equally, and if a child has died, that child's own children take their parent's share; and
• if you leave no partner or children, the estate passes to other relatives in a set order, starting with your parents, then siblings, then grandparents, then aunts and uncles (or their children), and finally to the State if no eligible relative can be found.

These rules are fixed. They do not take into account who needs support, who cared for you, close friends, a charity you supported, or the realities of a blended family.

Who looks after the estate?

Without a Will there is no executor. A family member or other interested person must apply to the Supreme Court of NSW for letters of administration, and the Court will generally appoint the closest relative. The administrator must follow the intestacy rules, even if the family would prefer a different outcome.

Common problems when there is no Will

• Blended families: stepchildren generally do not inherit under the intestacy rules.
• Unmarried partners: a de facto partner may need to prove the relationship before they can be treated as a partner.
• Family conflict: an outcome that feels unfair can lead to disputes, including family provision claims.
• Delay and cost: applying for letters of administration can take time and add expense during an already difficult period.

Some assets do not form part of your estate at all. For example, jointly owned property usually passes to the surviving owner, and superannuation is dealt with under its own rules and nominations, so these should be reviewed alongside your Will.

What if someone has already died without a Will?

The family can still apply for letters of administration. People who believe they have not been adequately provided for may also be able to make a family provision claim, which generally must be made within 12 months of the date of death.

This article is general information only and does not constitute legal advice. Every matter is different — speak with one of our lawyers about your specific circumstances.

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