When a person dies without a will or with a will that does not effectively dispose of their property, it is known as dying intestate. The laws of intestacy provide for the distribution of intestate estates in a particular manner and may not take into account the true wishes of the deceased.
Firstly, an appropriate person needs to apply to the Supreme Court of New South Wales for letters of administration. Those documents allow for the collection of assets, the payment of funeral expenses and the distribution of the remaining intestate estate after the payment of debts, duties and taxes. Sometimes the Court will require an administration bond to be lodged to act as insurance against the administrator failing to property administer the estate.
When the administrator comes to distribute the estate, the intestacy rules provide that the whole of the property of the deceased is to be distributed to their spouse or domestic partner. If there is no spouse or domestic partner, the whole of the estate may be divided among any children of the deceased. If there is no spouse, domestic partner or children, the whole of the intestate estate may be distributed to the parents of the deceased. The distribution of the property works its way down the family tree to brothers and sisters, grandparents then aunties and uncles. If the property of the deceased cannot be distributed to any of those people, it is then handed over to the State government.
If a person dies without a will, the control that they would have otherwise had over their property is taken away. The laws of intestacy can require the distribution of a deceased estate in a way that is not in accordance with the wishes of the deceased. For instance, an ex-husband or ex-wife of the deceased may be able to take assets in priority to a current domestic partner. Also, if the deceased intended that a bequest or gift be made to a charity or other institution, the laws of intestacy don’t provide for that sort of distribution. Death without a will can also impose a lot of stress on those left behind as they try to navigate the complex laws relating to wills and estates.
Up to 40% of Australians die without a will. Having a lawyer draft a valid and enforceable will can save a lot of time and money for those left behind. A clear, valid and enforceable will also gives you piece of mind that your wishes will be carried out properly by your executors.
If you don’t have a last will and testament, would like to update your will or if someone close to you has died intestate go to our contact page, send us an email or submit an enquiry using the form on the right side of your screen. Our succession and estate planning lawyers are waiting to help you with your inheritance law needs.
