What To Do If Someone Dies Without A Will

If you have assets such as property in the form of land or other items, superannuation or a healthy bank account, you should consider creating a will if you don’t already have one. Because if you die without writing a will, you are said to have died “intestate”. The unfortunate consequence of dying intestate in New South Wales is that the testamentary wishes of the deceased are not considered. So what to do if someone dies without a will?

During these uncertain times, if you're looking for the best lawyer in Sydney CBD, NSW, Jeffrey of JCL Legal is available by mobile phone. Please call him on 0419 233 670.

Dying Without A Will

If someone dies without making a will, that person has died ‘intestate’ and their assets will be distributed in accordance with the intestacy laws in their state or territory. Dying intestate means that the preferences of the deceased are not respected in the distribution of the deceased estate, and the deceased has no option to make provision for those who will go unrecognised under succession law.

Potential Consequences Of Not Having A Valid Will

All states and territories in Australia have similar intestacy legislation, but there are also some significant differences. For example, in Western Australia and the Northern Territory, depending on the size of your estate, if you die leaving a spouse but no children your parents and siblings are entitled to a portion of your estate.

In most other states, if you die leaving a spouse and one or more children from that marriage, then 100% of the estate passes to your surviving spouse. However, if you die and leave children who are not the biological children of your surviving spouse, the outcome can be vastly different.

Not only could a potential outcome not reflect your wishes, but it could result in your spouse or children challenging the outcome, causing friction and ill will between your loved ones and costs that often outweigh the costs of preparing a basic will.

Intestacy In New South Wales

If a person dies before making a will that is valid under the Succession Act 2006 (and the Supreme Court of New South Wales has not accepted an invalid will), the person dies as an intestate. This means their assets will be distributed amongst their surviving relatives in accordance with the rules in the Succession Act 2006.

The rules are very prescriptive, and it is important to note that they remain subject to any person seeking a family provision order from the estate.

The main rules for the distribution of intestate estates in New South Wales are as follows:

• If you die as an intestate and were married or in a domestic or de facto relationship at the time immediately before your death, then your spouse has priority over your other relatives for a share of your assets.
• If you leave a spouse but no children, your spouse is entitled to the whole of your estate.
• If you leave a spouse and have children with that spouse (but no children from a previous spouse), then the spouse is entitled to the whole of your estate.
• If you leave a spouse and have children with a former spouse, then your current spouse is entitled to your personal effects, a statutory legacy which is calculated based on the consumer price index, and half of whatever is remaining. The children are entitled to the other half.
• If you leave only one spouse, that spouse may be granted the right to acquire property from your estate.
• If you leave children but do not leave a spouse, the children are entitled to your estate in equal shares.
• Other relatives such as your parents, siblings and grandparents will generally be entitled to a share of your estate if you did not have a spouse or children at the time you died.
• If no persons are entitled to a share of your estate under these rules, all of your assets will become the property of the New South Wales government.

Common Circumstances Of A Person Dying Without A Will

The most common reason people die without a will is inaction. There are many reasons for this inaction, including:

• Thinking that they don't have sufficient assets to justify making a will
• Being fearful of discussing death
• Intending to make a will but simply never getting around to it, and
• Being unable to decide what to do in the will so doing nothing (for example, not being able to decide who to appoint as guardians of children).

When Should You Make A Will In NSW?

Anyone over the age of 18 with the required mental capacity can create a will. However, most people don’t create a will until they acquire assets they are concerned about passing on, such as property in the form of a house or land, or when they have children.

In the case of children, appointing a testamentary guardian in a will is also important for many people. If there are no surviving parents, the person appointed as testamentary guardian will be responsible for taking care of a child’s daily and long-term needs (as long as there are no other court orders stating who the child will live with).

Hire The Best Lawyer in Sydney Who Cares About Your Needs

Dying without a will in NSW creates uncertainty and is more likely to result in a dispute.

It can cause delay and additional expense if those left behind argue about who is to be appointed as the administrator and whether or not the intestate distribution adequately provides for those people closest to the deceased.

A good Lawyer in Sydney like Jeffrey of JCL Legal will be able to assist you with any legal issues in an efficient manner. To better your chances of meeting your goals in a timely manner, they can handle negotiations on your behalf and if needed, represent you in court.

During these uncertain times, if you're looking for the best lawyer in Sydney CBD, NSW, Jeffrey is available by mobile phone. Please call him on 0419 233 670.