When does the State get your Estate?
If I don’t make a Will, who inherits my estate?
When someone passes away, the first step your lawyer should take is to check if there is a Will.
Your lawyer will normally check the deceased’s paperwork, banks, NSW Trustee and Guardian, and all lawyers in the area. If no Will is found from those enquiries you can normally form the conclusion that the deceased died intestate – that is, without a Will.
There is a common misconception that if you die without a Will, your estate will go to the State government. This is rarely the case, but it can happen.
The relevant legislation in NSW is the Succession Act 2006. This legislation sets out the rules and the order as to who is entitled to receive your intestate estate:
1. The spouse of the deceased and children from the relationship →the spouse is entitled to the whole of the estate.
2. The spouse of the deceased and children from a previous relationship → the spouse receives the personal effects, a statutory legacy ($350,000 adjusted by CPI) and half of everything leftover. The children share the other half of everything leftover.
3. More than one spouse → the spouses are entitled equally to the estate.
4. Children only → the children are entitled to equal shares of the estate.
5. No spouse or children → the deceased’s parents are equally entitled to the estate.
6. No spouse, children or parents → the deceased’s siblings are equally entitled to the estate.
7. No spouse, children, parents or siblings → the deceased’s grandparents are equally entitled to the estate.
8. No spouse, children, parents, siblings or grandparents → the deceased’s aunts and uncles are equally entitled to the estate.
9. No spouse, children, parents, siblings, grandparents, aunts or uncles → the deceased’s first cousins are equally entitled to the estate.
10. No spouse, children, parents, siblings, grandparents, aunts, uncles or cousins → the State government is entitled to the estate.
It is always better to make a Will.
A Will allows you to have input as to who will inherit your estate and who will administer your estate.
If someone dies without a Will, the executor of the intestate estate will be required to produce certificate evidence to establish the family tree of eligible beneficiaries.
It is far more complicated and can be more costly to administer an estate without a Will.
To make an appointment to discuss your Will and Estate Planning, call us on 02 6841 4300.