What happens to my assets if I die without a Will?
An intestate is someone who dies either without leaving a Will or dies without effectively disposing of all their property pursuant to a Will. While we strongly encourage all our clients to have a Will that reflects their current intentions for the administration of their Estate in the event of their death, sometimes the creation of a Will is overlooked in circumstances where death occurs unexpectedly, disregarded if they do not have significant property, or not possible if there are issues with capacity.
Changes to the Succession Act 2006 (NSW) (referred to as “the Act”) were introduced as part of the Uniform Succession Laws Project by the enactment of the Succession Amendment (Intestacy) Act 2009 (NSW) which came into effect in 2010. The amendments extended the rights of the spouse and included the right to permit the Minister of the State to waive the State’s entitlement in favour of a person, charity or organisation with a close association to the intestate.
The right of the spouse to acquire the joint principal place of residence of the deceased and spouse from the Estate has now been extended to allow the spouse to acquire any property from the Estate at market value at the date of the intestate’s death, provided that the election is made in accordance with the legislation.
Where the deceased leaves a spouse and no children, or leaves only children of the spouse and of the deceased, the spouse is entitled to the whole of the intestate estate. The definition of spouse includes anyone married to the deceased person immediately before the intestate’s death, or who was party to a domestic partnership within the intestate immediately before the intestate’s death. A domestic partnership is a registered relationship or a de facto relationship that has been in existence for a continuous period of 2 years or has resulted in the birth of a child.
Where the deceased left a spouse and children who are not children of the spouse, the spouse is entitled to the intestate’s personal effects, a statutory legacy (being $350,000 adjusted by CPI from the December 2005 quarter plus interest if the legacy is not paid within 1 year after the intestate’s death), and one-half of the remainder of the intestate estate. Sometimes in respect of small estates, the statutory legacy exceeds the amount of the intestate estate and the spouse receives the entire estate. If a part of the estate remains after the spouse’s entitlement, then the children of the deceased share in the remainder.
Where the deceased passes away without a spouse or children, the closest living relatives will be entitled to the intestate in the following order:
- Parents;
- Then brothers and sisters;
- Then grandparents;
- Then aunts and uncles.
In the absence of persons entitled, the State is entitled to the intestate’s estate. The Minister can waive the State’s entitlement in favour of any dependents of the intestate, any person that might have a moral claim to the estate, or any organisation or person for whom the intestate may have reasonably been expected to make a provision.
The legislation goes into great detail to determine the entitlements of the surviving family members of the intestate. When a person dies without a Will, the answer to who is entitled may be simple, but it can be complicated particularly in this day and age of blended families and multiple spouses.
If you have experienced a death in the family and you need some advice, we invite you to contact Austin Giugni Martin on (02) 8076 4539 or enquiries@agmlawyers.com.au. We also strongly advise you to take the time to plan ahead while you can for those you leave behind when you die.
This publication is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. The publication reflects the law at the date the publication was written, which may differ at the date the publication is being read. No reader should act on the basis of any matter contained in this publication without first obtaining specific professional advice.
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