A person who dies without a Will is said to have died “intestate”. Dying Intestate means that your testamentary wishes are not considered and someone else will decide who inherits your estate. Your preferences are not respected in distributing the deceased estate, and no provision is made for those who are not recognised under succession law.
Who inherits?
The deceased’s estate is distributed according to intestacy rules set out in the Succession Act 2006.
When someone dies intestate, the Supreme Court of New South Wales is empowered to provide letters of administration authorising an administrator to distribute the estate assets. The estate assets are distributed principally to any next of kin, specifically the spouse and “issue” (children) of the deceased. If at the deceased’s passing they were married or in a de facto or domestic relationship, regardless of whether the deceased and their spouse had children, their spouse will (following the discharge of any liabilities) inherit the whole estate.
However, when the deceased has a spouse and children from another relationship, the spouse inherits:
- the deceased’s personal effects;
- a CPI-adjusted statutory legacy; and
- half of the remaining estate
with the remainder being distributed to the children.
Property that was held by the deceased as a joint tenant will automatically transfer to the surviving joint tenant.
Who is included in the definition of ‘spouse’?
The definition of ‘spouse’ in the Succession Act 2006 includes anyone in a marriage or domestic partnership (including de facto and registered partnerships) with the deceased. Generally, for a surviving partner’s relationship with the deceased to be considered a de facto relationship:-
- It must have been for a period of at least two years; or
- there must be a child of the relationship.
An estranged spouse to a marriage who is separated but not divorced from their spouse when they pass away is considered legally married, entitling them to inherit the deceased spouse’s estate.
Dying intestate complicates the inheritance process for parties to a domestic relationship, but a de facto spouse or genuine domestic partner who can prove their relationship status to the court will ultimately inherit.
The Court will also consider more abstract concepts such as whether the parties were accepted by the community as an established couple and the level of commitment between them.
Who is included in the definition of “issue”?
The deceased’s issue often inherits an intestate estate. Under succession law, the term “issue” includes biological and lawfully adopted children. Both have identical rights to inherit an equal portion of an intestate estate. All biological children, including those of unmarried parents, are entitled to inherit from a deceased’s estate. However, a biological child of a parent dying intestate may be required to provide evidence of paternity.
What if there Is no spouse or issue?
If an intestate deceased had no issue or spouse, a legislated order of succession determines which other relatives inherit. First in line to inherit are the deceased’s parents, followed by any siblings, then nephews and nieces, grandparents, uncles and aunts, and finally cousins. If no eligible relation is identified, the deceased’s assets are inherited by the state.
Contact us now for free no obligation initial telephone advice about dying intestate in NSW.
