Intestacy

In New South Wales intestacy refers to the situation where a person dies without a valid will, or where there will does not cover all of their property, which is called a partial intestacy.

When a person dies intestate, their assets are distributed according to the laws of intestacy, which are set out in the Succession Act 2006 (NSW).

Informal Will

An informal will is a document that expresses a person's testamentary wishes but does not comply with the formal requirements for a valid will under the Succession Act 2006 (NSW). For example, an informal will may not be signed by the person or witnessed by two people. An informal will may be a handwritten note, an email, a text message, a video recording or any other form of communication.

An informal will may be accepted by the court as a valid will if it can be proven that the deceased person intended it to be their final will and that it clearly states their wishes. However, this process can be costly, time-consuming and uncertain.

If the executor or family member of a person who has died is aware of an informal will they should seek legal advice.

Partial Intestacy

Partial intestacy is when a person dies with a valid will but it fails to dispose of all their assets. In NSW, the assets that are not covered by the will are distributed according to the rules of intestacy.

Partial intestacy could occur for various reasons, such as the person married after a will was made or the person did not include a residuary clause in their will, which would cover any assets that are not specifically mentioned or allocated.

What happens when someone dies intestate?

If a person dies without a will or with a partial intestacy, someone will need to apply for Letters of Administration, which is a court document that authorises that person to administer the deceased's estate according to the intestacy rules.

Often Disputes arise between family members on intestacy. It is possible to make a family provision claim on an estate where there was no will.

Intestacy Rules

Intestacy rules are set out in the Succession Act 2006 (NSW).

The rules depend on whether the person had a spouse, children or other relatives at the time of their death.

Some of the main rules are:

• If the person had a spouse and no children, the spouse gets everything.
• If the person had a spouse and children from that relationship only, the spouse gets everything.
• If the person had a spouse and children from another relationship, the spouse gets a statutory legacy (gift) of approximately $490,000 (as at July 2021) plus half of the remaining estate, and the children get the other half. This includes adopted children but not step children. If the child of the deceased has already died leaving children (grandchildren of the deceased), the grandchildren are entitled to their parent's share.
• If the person had no spouse but had children, the children get everything equally.
• If the person had no spouse and no children but had parents, siblings or nieces/nephews, they get a share according to a formula.
• If there is no surviving relative, the assets will be distributed to the Crown.

Intestacy can lead to disputes among family members and can also result in some people being left without adequate provision, particularly if the deceased person had no surviving spouse or children. If you have been left with nothing, or an insufficient amount because of an intestacy, we can help.

• What is an executor?
• What is Probate?