Losing a loved one is never easy, and handling their estate can be overwhelming—especially if they did not leave a Will. In such cases, the law dictates how their assets will be distributed through a process known as intestate succession. Understanding what happens when someone dies without a Will can help families navigate this challenging time and avoid unnecessary complications.
What Does “Intestate” Mean?
If a person passes away without a legally valid Will, they are considered to have died intestate. This means that the Succession Act 2006 (NSW) governs the distribution of their assets. Without a Will to express their wishes, their estate will be allocated according to a strict legal hierarchy, which may not align with what they would have wanted.
Who Administers the Estate?
When there is no Will, someone must apply to the Supreme Court for a Grant of Letters of Administration to manage the estate. This is usually a close family member, such as a spouse or adult child. The administrator is responsible for:
- Identifying and valuing assets
- Paying outstanding debts and taxes
- Distributing the remaining estate according to intestacy laws
If no family member is available or willing to act, the court may appoint the NSW Trustee & Guardian or another suitable person to handle the estate administration.
How Are Assets Distributed?
Intestate succession follows a fixed order of priority. Here’s how the estate is distributed based on the deceased’s family structure:
- If there is a spouse or de facto partner:
- If there are no children, the spouse inherits the entire estate.
- If there are children from the relationship, the spouse still inherits everything.
- If there are children from a previous relationship, the estate is divided between the spouse and children.
- If there is no spouse or de facto partner:
- The estate is shared equally among children. If a child has passed away, their share goes to their children (grandchildren).
- If there are no children:
- The estate passes to the deceased’s parents.
- If there are no living parents:
- The estate is distributed to siblings, then nieces and nephews, and further down the family line.
- If no eligible relatives are found:
- The estate may be claimed by the State of New South Wales.
The Risks of Dying Without a Will
Not having a Will can lead to significant challenges, including:
1. Family Disputes
The legal distribution of assets may not reflect the deceased’s wishes, leading to potential inheritance disputes among family members. This can result in costly and lengthy legal battles.
2. Delays and Legal Expenses
Administering an intestate estate is often more complex and time-consuming than when a valid Will exists. Legal fees and court proceedings can reduce the value of the estate, leaving beneficiaries with less than expected.
3. Lack of Personal Choice
Without a Will, you cannot specify personal wishes, such as:
- Gifts to friends or charities
- Guardianship for minor children
- Funeral arrangements
The law does not take personal relationships or special circumstances into account, which can lead to unintended outcomes.
Why You Should Have a Will
Creating a legally valid Will ensures that your estate is distributed according to your wishes. It also provides clarity for your loved ones and minimizes the risk of disputes. With proper estate planning, you can:
- Designate beneficiaries of your choice
- Appoint a trusted executor to manage your estate
- Ensure financial security for your family
- Protect assets from unnecessary legal complications
At Family Focus Legal, we strongly encourage individuals to take the time to draft a comprehensive Will. Our experienced team can guide you through the process, ensuring your final wishes are legally recognized and your loved ones are provided for.
Final Thoughts
Dying without a Will can leave your loved ones dealing with unnecessary stress, delays, and legal battles. While intestacy laws provide a default distribution plan, they may not align with your personal intentions. Taking proactive steps to create a Will is one of the most important decisions you can make to safeguard your legacy and your family’s future.
If you need help drafting a Will or have questions about estate planning, contact Family Focus Legal today. Our dedicated team is here to provide expert guidance and ensure your estate is managed according to your wishes.
