The Importance of a Will: Navigating Intestacy Laws in New South Wales, Australia
In estate planning, we know that having a legally enforceable Will is paramount. Your Will assures you and your loved ones that your assets will be distributed according to your wishes after you die. But what happens to your money and property if you die without a Will in New South Wales?
When a person dies without a valid Will in NSW, they are considered to have died ‘intestate’. In such cases, the Succession Act 2006 (NSW) steps in to govern the distribution of the deceased's estate. This legislation ensures that the deceased's assets are distributed in a pre-determined order to their closest relatives, which may not align with the deceased’s wishes had they been documented in a Will.
Who will inherit my assets if there is no Will?
Intestacy laws in NSW work according to a set formula for asset distribution. The order of inheritance in New South Wales is as follows:
If the deceased leaves behind a spouse or de facto partner, they are generally entitled to the entire estate. If there are children involved who are not of the spouse, then the estate is divided differently - the spouse receives personal effects, a statutory legacy (a sum fixed by legislation), and half of the remaining estate, and the children receive the other half, divided evenly between each child.
When there is no surviving spouse, partner, or children, the estate proceeds to other relatives in the following inheritance order: grandchildren or great-grandchildren, parents, siblings, grandparents, aunts and uncles, and cousins. If there are no surviving relatives, the estate defaults to the Crown.
Who is responsible for administering an estate when there is no Will?
In the absence of a Will, the Supreme Court of New South Wales appoints an administrator, usually a close relative, to manage the estate. The administrator is responsible for gathering the deceased's assets, paying any debts, and distributing the remaining assets according to the Succession Act. If you wish to administer an estate in the absence of a Will, then it is necessary to apply to the Supreme Court for Letters of Administration to be appointed to this role.
Why is it important to see an estate planning lawyer to make a Will?
Death without a Will can cause uncertainty and potential (expensive) conflict amongst surviving family members. If your assets are distributed according to intestacy rules, then non-relatives and charities that you may wish to benefit will be over-looked. Instead, relatives you may not wish to benefit could inherit some of your estate. Working with an experienced estate planning solicitor ensures that your Will is valid, up-to-date, and reflective of your wishes, thereby avoiding unnecessary legal complications for your loved ones.
In summary, intestacy laws may not reflect the nuanced and personal decisions you'd prefer for your estate. To secure your wishes and provide peace of mind for your loved ones, seek professional advice about creating a will. At The Estate Planning Centre, our lawyers are experts in estate planning law and can offer invaluable assistance, creating a robust plan that reflects your personal circumstances and preferences.
By Jaime Dunn