What Happens If I Die Without a Will?

Your will is a legal document that determines how you want all your property (or your ‘estate’) to be dealt with after you die. It is not uncommon for people to put off making a will because, let’s face it, thinking about death and dying lacks appeal. However, it is crucial that you make a will, no matter how much of a buzzkill it may be. Dying without a will means your last wishes may not be carried out, and your family and friends may be left with a complex legal headache.

What does intestacy mean?

Intestacy is the legal term used to describe a situation where a person has died and has not left behind a will or any binding declaration to say what should be done with their property. Examples of how you may hear this term being used include: “He/she died intestate” or “He/she died in intestacy”.

Sometimes, a person who has died may have left behind a valid will or a binding declaration, but this will, or declaration may only apply to part of their estate. The person who has died may have forgotten or neglected to update their will to include the entirety of their estate, and so it is now unclear what should happen with a chunk of their property now that they have passed away. Those items that are not covered by the will or declaration are known as the ‘intestate estate’.

What happens if you don’t have a will?

If you died intestate, aka without a will, there are several things that will need to happen. If you die without a will in NSW, an application needs to be made to the Supreme Court asking for ‘Letters of Administration’. This document, ‘Letters of Administration’, provides the Supreme Court’s formal approval for someone to administer the estate of the deceased person. The appointed administrator may be the person or people who have the greatest entitlement to the deceased person’s estate, or appointed administrator may be the NSW Trustee and Guardian. The appointed administrator will then be responsible for confirming which of the deceased person’s relatives are entitled to a share of their estate.

Who is entitled to your estate if you don’t have a will?

If you die intestate and an appointed administrator is left with the task of confirming who is entitled to your estate, they will do so in accordance with the intestacy rules in the Succession Act 2006 (NSW).

Who will inherit my property?	What they will inherit and other rules
Your current spouse and children from your relationship	The current spouse is entitled to your whole estate unless you have children from previous relationships
Current spouse, children from your relationship and your children from a previous relationship	If you also had children from previous relationships, your current spouse is entitled to: All of your personal effects A statutory legacy And half of whatever is left of the estate. The remaining half of the estate is shared equally between all your surviving children.

Who will inherit my property?

What they will inherit and other rules

Your current spouse and children from your relationship

The current spouse is entitled to your whole estate unless you have children from previous relationships

Current spouse, children from your relationship and your children from a previous relationship

If you also had children from previous relationships, your current spouse is entitled to:

All of your personal effects
A statutory legacy
And half of whatever is left of the estate.
The remaining half of the estate is shared equally between all your surviving children.

A spouse’s statutory legacy was $482,000 in 2020. This figure is frequently adjusted in accordance with the current Consumer Price Index. If your estate is not enough to cover the statutory legacy at the time of your death, then your spouse will be entitled to everything in the estate.

Below is a guide to who will inherit your property if you die without a spouse. The appointed administrator will move through each category, looking for relatives. Once they find an eligible relative, the process stops, and your estate is distributed.

If you do not have the following living relative at the time of your death –	This category of relative will inherit your estate instead	This is what they will inherit and other rules.
Spouse	Your children	Equal shares of your estate. If any child has already died and left you a grandchild, that grandchild will inherit. If any child and their child has died and has left you a great grandchild, that great grandchild will inherit – etc.
Spouse Children	Your parents	Equal shares of your estate.
Spouse Children Parents	Your brothers and sisters	Equal shares of your estate. If any sibling has already died and left you a niece or nephew, that niece or nephew will inherit. If any sibling and their child has died and has left you a great niece or nephew, that great niece or nephew will inherit – etc
Spouse Children Parents Brothers and sisters	Grandparents	Equal shares of your estate.
Spouse Children Parents Brothers and sisters Grandparents	Aunts and uncles	Equal shares of your estate.
Spouse Children Parents Brothers and sisters Grandparents Aunts and uncles	First cousins only	Equal shares of your estate.
Spouse Children Parents Brothers and sisters Grandparents Aunts and uncles First cousins	NSW Government	The whole of your estate.

Why is it important to have a will?

The table above demonstrates why it is important to have a will. Without a will, your estate may be awarded to family members that you may not wish to receive it. Your estate may also not be distributed in the proportions you would have wished it to, and specific gifts that you may want to give to specific people may end up being sold so that your estate can be simply distributed by the administrator.

Making a will is a relatively easy process, and it is made all the easier when you engage the right law firm. If it is a simple affair you are after, without a testamentary trust, then we can provide you with a will follows:

Contact Vania Holt Legal on 0425 736 057 or by email at admin@vaniaholt.com.au if you have further questions or if you would like us to write your will for you.

What Happens If I Die Without a Will?

What does intestacy mean?

What happens if you don’t have a will?

Who is entitled to your estate if you don’t have a will?

Why is it important to have a will?

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