What happens if I die without a will in New South Wales?

If you die in New South Wales without a will, you are considered to have died intestate. Usually, a grant of Letters of Administration will then be applied for, and your estate will be passed on to eligible relatives as per the Succession Act 2006.shutterstock_436753729

Who does my estate go to?

Your estate is then distributed to eligible relatives (if any) as per the Intestacy Rules set out in the Succession Act 2006, however if you die without any eligible relatives, then your estate will go to the Crown.

If you do not have a spouse or any children, the general order of inheritance in New South Wales is as follows;

    • Your parents
    • Your siblings
    • Your grandparents
    • Your aunts/uncles
    • Your cousins
  • The State

This means that assets will not be distributed past the relation of cousins. The usual process is for the assets to go through the general order until an eligible inheritor is found.

What are the Intestacy Rules?

In New South Wales, the Intestacy Rules are found in the Succession Act 2006 and are as follows;

Circumstance Entitlement
Where the intestate leaves a spouse and no issue
  • The spouse is entitled to the whole of the intestate estate
Where the intestate leaves a spouse and issue from the relationship
  • The spouse is entitled to the whole of the intestate estate
Where the intestate leaves a spouse and issue from a previous relationship
  • The spouse is entitled to:
      • The intestates personal effects, and
      • A statutory legacy, and
    • One-half of the remainder (if any) of the intestate estate.
Where the intestate leaves more than one spouse, but no issue
  • The spouses are entitled to the whole of the intestate estate in shares.
Where the intestate leaves a more than one spouse and issue who are all issue of one or more of the surviving spouses
  • The spouses are entitled to the whole of the intestate estate in shares.
Where the intestate leaves more than one spouse and any issue who are not issue of a surviving spouse
  • The spouses are entitled to share:
      • The intestates personal effects, and
      • The statutory legacy that would be payable if the intestate had left only one surviving spouse, and
    • One-half of the remainder (if any) of the intestate estate.
Where the intestate leaves issue
    • If an intestate leaves no spouse but leaves issue, the intestate’s children are entitled to the whole of the intestate estate.
    • If an intestate leaves a spouse/s, and any issue who are not also issue of a surviving spouse, and a part of the estate remains after satisfying the spouse’s entitlement, the intestate’s children are entitled to the remaining part of the intestate estate
    • If no child predeceased the intestate leaving issue who survived the intestate then if there is only one surviving child, the entitlement vests in the child, or
      • If there are 2 or more surviving children, the entitlement vests in them in equal shares
  • If one or more of the intestate’s children predeceased the intestate leaving issue who survived the intestate: allowance must be made in the division of entitlement between children for the presumptive share of any deceased child and the presumptive share of any deceased child is to be divided between that child’s children.
Where the intestate is not survived by issue but is survived by one or both parents
  • The parents of an instate are entitled to the whole of the intestate estate if the intestate leaves no spouse and no issue.
Where the intestate is not survived by a spouse, issue or parents
  • The brothers and sisters of an intestate are entitled to the whole of the intestate estate  
      • If there is only 1 sibling, the entitlement vests in them.
    • If there is 2 or more siblings, the entitlement vests in them in equal shares
Where the intestate is not survived by a spouse, issue, parents or siblings
    • The grandparents of an intestate are entitled to the whole of an intestate estate
  • If there is only one surviving grandparent, the entitlement vests in the grandparent, and if there is 2 or more grandparents, it vests in them in equal shares.
Where the intestate is not survived by a spouse, issue, parents, siblings or grandparents
    • Aunts and uncles are entitled to the whole of the intestate estate
  • If there is only one surviving aunt/uncle, the entitlement vests in the them, and if there is 2 or more aunts/uncles, it vests in them in equal shares.
Where the intestate is not survived by a spouse, issue, parents, siblings, grandparents or aunts or uncles
  • First cousins are entitled to equal shares of the whole estate
Where the intestate leaves no persons entitled
  • If an intestate dies leaving no person who is entitled to the intestate estate, the State is entitled to the whole of the estate.

What can I do now?

Most people don’t want their estate to be passed to the Government or distant family members if they have no entitled persons for their estate to go to. To ensure your assets are distributed how you want them to be, you should have a will in place.

More information? To find out more, give us a call on 1300 023 782 or email team@cdrta.com.au.

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Craig is the principal consultant of C&D Restructure and Taxation Advisory and has been working in the industry since 1999. Having established C&D Commercial Partners in 2015 the precursor to the current business.

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Post Author: Craig Dangar

Craig is the principal consultant of C&D Restructure and Taxation Advisory and has been working in the industry since 1999. Having established C&D Commercial Partners in 2015 the precursor to the current business.

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