Who gets my assets if I die without a Will?

Published On - November 14, 2022

Estate Planning, Intestate, Wills

It is estimated that 50% of Australian adults don’t have a Will.

This article provides a thumbnail sketch as to who is entitled to the assets (estate) of a person who dies without a Will in NSW.

The NSW Succession Act 2006 (Act) at Chapter 4 determines who is entitled to a person’s estate if they die without a Will.

Someone, usually a family member, has to make an application to the Supreme Court of NSW to provide evidence that there was no Will and apply for the deceased person’s estate to be dealt with.

It depends on who the deceased person had as family when they died as to who is entitled to their estate.

  1. Single with no children;

  2. Single with children;

  3. Married or in a domestic partnership without children;

  4. Married or in a domestic partnership with children from that relationship only;

  5. Married or in a domestic partnership with children from another relationship/s only – a blended family scenario;

  6. Married or in a domestic partnership with children from that relationship and also a child/children from another relationship – another blended family scenario;

  7. Indigenous to Australia.

Some terms are defined at the end of the article.

1. Single with no children

  • parents in equal shares or the survivor if only one parent; but if none then
  • brothers and sisters of the Deceased person in equal shares; but
    • if a sibling has also died before the deceased, then to the sibling’s children equally or if no children to the remaining siblings; but if none then
  • grandparents; but if none then
  • aunts and uncles or their children; but if none then;
  • the whole of the estate is left to the NSW Government.

2. Single with children

  • the children in equal shares, but if a child dies before the Deceased person leaving children;
  • those children will be entitled to their deceased parent’s share equally.

3. Married or domestic partnership without children

  • the Deceased person’s estate is left to the surviving spouse/partner;

4. Married or in a domestic partnership with children from that relationship only

  • the Deceased person’s estate is left to the surviving spouse/partner only;

5. Married or in a domestic partnership with children from another relationship/s only

  • Entitlement to the Deceased person’s estate is as follows :
    • personal effects to the spouse/partner;
    • a statutory legacy (being about $490,000 as of July 2021 and adjusted each year by CPI) to the spouse/partner; and
    • one half of the remainder of the Deceased’s estate to the spouse/partner; and
  • the remainder of the estate to the children of the Deceased person, in equal shares,

6. Married or in a domestic partnership with children from that relationship and also children from another relationship

  • Entitlement to the Deceased person’s estate is as follows:
    • personal effects to the spouse/partner;
    • a statutory legacy (being about $490,000 as of July 2021 and adjusted each year by CPI) to the spouse/partner; and
    • one half of the remainder of the Deceased’s persons estate to the spouse/partner; and
  • the remainder of the estate to the children of the Deceased Person (from the other relationship) in equal shares.
  • Nothing specifically goes to the children of the Deceased person and surviving spouse/partner as the surviving parent receives an entitlement.

7. Indigenous to Australia

The personal representative or a person claiming to be entitled to a share of the Deceased person’s estate under the laws, customs, traditions and practices of the indigenous community or group to which an indigenous Deceased person belonged may apply to the Supreme Court NSW for an order for distribution of the Deceased person’s Estate.

An application must be made in a timely manner (within 12 months) and before the distribution of the Deceased person’s estate has taken place.

Definitions

Married or in a domestic partnership includes same sex relationships.

A domestic partnership is:

  • A registered relationship, or interstate registered relationship, within the meaning of the Relationships Register Act 2010; or
  • A de-facto relationship that (1) has been in existence for a continuous period of two years, or (2) has resulted in the birth of a child.

An adopted child is considered a child of the adoptive parent or parents.  The family relationships that exist as a matter of biological fact are ignored.

A child of a surrogacy arrangement where a parentage order is made is regarded as a child of the parent or parents named in the parentage order.  Family relationships that exist as a matter of biological fact are ignored.

There are also rules where the Deceased person has multiple spouses and this can take a number of forms which will not be dealt with in this article.

Remember

This is a simplified version of what may occur when a person dies with out a Will.   Often there are exceptions to a rule and issues that arise that alter the above.  It is best to obtain legal advice.

There are also rules about informal Wills that are not mentioned in this article where there is no legal Will but there is a testamentary document that may suffice.

 

This article is not legal advice or to be relied upon to determine any particular outcome.  There are complexities to all of the above scenarios.  If you have any questions, please do not hesitate to contact us.