But what if there isn’t a Will? Well… there still is a way, but it does become a bit trickier and more involved process for the relatives of the deceased person.
If a person dies without making a Will or if they make a Will, but it fails to dispose of all assets properly or there is no beneficiaries who have survived the testator, then that person is deemed to have died intestate.
The Succession Act 2006 (NSW) deals with intestacy and outlines the general rules for who will benefit from a person’s estate if they die intestate.
So who gets your things if you die without a Will?
That really depends on your situation. Generally speaking, if you have a spouse, they will be entitled to your estate. The exceptions are if you have more than one spouse or you have children from a previous relationship.
If you have more than one spouse, your spouses are entitled to equal distribution of your estate.
If you have children from a previous relationship, then your spouse will be entitled to your personal effects, a gift of $350,000.00 (adjusted by CPI) and half of the rest and residue of the estate. Your children will be entitled to the balance of the rest and residue to be shared between them equally.
If you do not have a spouse, the general order for entitlement is as follows:
- Your children (but where a child has died and left children, their share will go to your grandchildren); and if none
- Your parents; and if none
- Your siblings (but where a sibling died and left children, their share will go to your nieces and nephews); and if none
- Your grandparents; and if none
- Your aunts and uncles; and if none
- Your first cousins; and if none
- The NSW Government.
If there is more than one beneficiary, then the share will be divided equally between them.
It is a common misconception that if you die without a Will, then the Government will receive all your assets. As you can see this is only true if the person who died had no immediate relatives that survived them.
Overall, it is much simpler for your relatives if you make a Will before you die because the process to administer an Estate of a person who died intestate is more complex and costly as the deceased did not give any person the authority to administer the Estate. This means that a grant of Letters of Administration must be sought so that there is someone with the authority to do the things necessary. More importantly, without a Will, your assets may not go to the people you wish to benefit.
If you would like to make a Will or have any questions about making a Will, please contact Everingham Solomons because Helping You is Our Business.
Click here for more information on Terry Robinson