Not quite. A person who passes without a Will is like a baker who baked a beautiful cake, but left no instructions on who gets a slice or how big the slices should be. Family members will squabble over the slices, or worse, some slices may go to unintended people. If this is the case, intestacy laws may apply.
Such laws are in place to deal with how to distribute an intestate estate. Since these laws are available, isn’t it better to have no valid Will than having one? Now that’s a dangerous gamble. A Will can provide clear instructions on how a deceased person will distribute their assets. If we take a Will away, then the deceased’s last wishes won’t be respected.
As beneficiaries, we should respect the Will-maker’s last wishes for us. They meant to leave an inheritance or assets that could help us reach a better financial situation. However, there may be instances where a person failed to make a Will before they passed.
Intestacy Laws: Why Do People Choose Not to Make a Will?
As mentioned, some people purposely do not write a Will and hope for the best after their passing. But now, the huge responsibility for managing the estate falls on the deceased’s loved ones or potential beneficiaries.
Not all people refuse to get a will, but they forget to make a will or do not foresee their passing. Sometimes, Will-makers already have a Will, but also neglect to update it regularly.
Potential Will-makers may also fear the idea of talking to their children about their death and who gets what. When is death a casual thing to talk about, right? This conversation can be incredibly difficult, touching on one’s mortality and the potential for discomfort or even conflict among their loved ones. Yet, if a person is aware, inheritance and intestacy laws can and will destroy families.
We can shift away from this thinking and think of a Will as a sign of profound love and foresight for one’s loved ones.
When you outline your wishes and inheritances in your Will, you create a clear roadmap that can help prevent misunderstandings and preserve relationships. If this isn’t enough of a sign that you should make a Will, then you can read more below.
So, How Do Intestacy Laws Work?
If a person dies without a Will, they may worry that intestacy rules may automatically give their assets to the State, but this is not the case. First, intestacy laws in NSW state that Chapter 4 of the Succession Act 2006 will apply. This act states how your assets are distributed to your eligible relatives or next of kin.
Let’s look at the information below on how certain relatives can receive a person’s assets who died intestate:
Surviving Spouse(s) & Surviving Children:
- If the deceased’s spouse and their children are also the spouse’s children, the spouse gets the entire estate. If there is more than one child, the spouse inherits one-third of the estate. The children receive equal shares from the remaining two-thirds.
- If the deceased leaves multiple spouses (and no children), spouses share everything equally.
- If the deceased has a spouse but also children from another relationship, the spouse gets personal items, a set amount of cash, and half of the remaining estate. The children split the other half.
If there’s no spouse, or the scenario above doesn’t apply, then the following intestacy laws apply:
1. Children share everything equally. (If a child has passed away, their children/grandchildren step into their place.)
Note: “Children” means biological or adopted children, not step-children.)
2. If no spouse or children, then parents will share everything equally.
3. If no spouse, children, or parents, then siblings will share everything equally. (If a sibling has passed away, their children/nieces/nephews step into their place.)
4. If no closer surviving relatives exist, the intestacy laws keep looking for eligible people in the family tree in this order:
- Grandparents (The surviving grandparents will receive the share of the estate or the whole of the estate if only one parent is alive)
- Aunts & Uncles
- First Cousins
5. If no one from the above categories can be found, the New South Wales Government inherits everything.
I’m a De Facto Partner of the Deceased! Don’t I Have Rights?
Yes, a de facto partner still has the same rights as a spouse. Anyone who has a close personal relationship with a deceased person has the right to their estate. However, the de facto partner must prove that they lived on a genuine domestic basis with the deceased. They can’t just claim the intestate estate that they were the domestic partner of a deceased without a valid reason and proof.
Letters of Administration for the Intestate Estate
Once we have identified which person is eligible to receive the inheritance under intestacy laws, they will apply for Letters of Administration. An eligible person can still apply for this if there is no executor in the Will. So, if there is a Will but no executor has been appointed, eligible relatives can apply for letters of administration.
To support your application, you’ll generally need to file these specific documents with the Supreme Court:
Affidavit Regarding De Facto Relationships:
- You’ll need a sworn statement (affidavit) confirming the deceased was not in a de facto relationship.
- Unless you are the de facto partner (including a same-sex partner) applying, in which case you’ll need a detailed affidavit proving your de facto relationship.
Affidavit of Applicant for Administration: This is a sworn statement from the person applying to be the Administrator. It replaces the “affidavit of executor” used for probate applications.
Administration Bond: This may be required in certain circumstances. An administration bond can help protect beneficiaries from financial loss and ensure that they receive what they’re entitled to from the deceased’s estate.
Do You Have More Questions About the Intestacy Rules?
Intestacy is never easy to deal with, especially if the intestate estate is valuable. As a beneficiary, you will worry about how the deceased’s wishes may be disrespected or not administered according to his intentions. Moreover, intestacy laws might not provide you fairly.
A Wills and estates lawyer from JB Solicitors can help you secure your rightful inheritance and assets from an intestate estate. Our team is constantly updated about the latest updates on intestate succession laws and identifies any pitfalls that you may face.
With all the information we have provided, surely you don’t want intestacy laws happening and running family relationships. So, why not make a Will with our firm? We can help draft a Will that follows a deceased’s wishes and ensures proper and fair provision among beneficiaries.
Contact us today if you need to resolve a family dispute over Wills and estates
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