Articles and legal news from the Atkinson Vinden Team.

Intestacy: what happens if you die without a Will?

Wills & Probate

Making a valid Will is the only way you can be confident that your assets will be distributed according to your wishes when you die. It allows you to provide for the people you care about, to appoint a person you trust to carry out the instructions in your Will or to make a gift to charity, for example.


If you die without making a valid Will, or your Will does not effectively deal with all or part of your property, you leave what is known as an intestacy-you die intestate. This means that your estate will be distributed according to a formula determined by legislation, commonly known as the Intestacy Rules. Under these rules, your spouse, children, parents, siblings, grandparents and even aunts, uncles and cousins may benefit from your estate. This may mean that your assets do not end up with the people you would have chosen. Many people are shocked to learn that if you die intestate and have no surviving relatives closer than cousins, the State Government is entitled to receive your whole estate!


Looking after intestate matters can also be complicated. A suitable administrator must be appointed by the Supreme Court. This may not be the person who you would have trusted to distribute your assets if you had made a Will. The administrator will also have additional responsibilities such as the need to establish your family tree using certificate evidence which may be a time-consuming and expensive task, resulting in additional estate costs and delays.


The simplest way to avoid these complications is to ensure that you have made a valid Will and that you review and update your Will whenever your circumstances significantly change. 


It is also important to be aware that the NSW Supreme Court has the power to order the variation of the terms of a will to make provision for a family member or dependent not included in your Will. Expert advice in the drafting of a Will can help avoid these claims at a later date, by properly addressing the needs of potential claimants, and where no gift is to be made, providing a coherent reason for that decision.


Please contact our Estates team if you would like further advice.


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