Protect your family and prepare a will

The preparation of a will is a confronting task. You might assume that if you die without a will your estate will be automatically passed to your spouse, partner or children however this is not necessarily the case.

If you die without a valid will, you die as what is known as “intestate”. An intestacy is when a person dies and does not leave a will or leaves a will but the will is invalid at law.

In NSW if you die intestate, your estate will be distributed in accordance with the rules in Chapter 4 of the Succession Act (NSW) 2006. The Act deals with all law relating to wills and to ensure that there are adequate provisions put in place for problems that may arise in the distribution of a deceased person’s estate.

If you die intestate, the rules for the distribution of your property as set out in the Act are as follows:

• If you leave a spouse but no children, your spouse will be entitled to your whole estate.
• If you leave a spouse and children with that spouse, your spouse will be entitled to the whole estate.
• If you leave a spouse and children, but the children are not the spouse’s children, your spouse will be entitled to your personal effects, a statutory legacy and one-half of the remainder of your estate. All your children, including children from previous relationships and your current relationship, will be entitled equal shares of the remainder of your estate.
• If you leave children but did not have a spouse, your children are entitled to the whole of your estate in equal shares. If any of your children have predeceased you and have left children, the children (your grandchildren) will be entitled to their parents share of your estate.
• If you leave no spouse, children or grandchildren, your parents will be entitled to your whole estate.
• If you leave no spouse, children or parent, your brothers and sisters (full or half blood) will be entitled to equal shares of your whole estate.
• If you leave no spouse, children, parents or siblings, your grandparents will be entitled to your whole estate.
• If you leave no spouse, children, parents, siblings or grandparents, your aunts and uncles (full or half-blood) will be entitled to your whole estate.
• If you leave no spouse, children, parents, siblings, grandparents or aunts and uncles, your first cousins will be entitled to your whole estate.

Each of the above categories must be exhausted until an eligible relative is found. However, under the Act, if there is no eligible relative the NSW government will be entitled to your whole estate. In some circumstances, a person can make an application to the Crown Solicitor to waive this right however they must prove that the deceased would have provided for them if they had prepared a will. You should seek legal advice immediately if you believe you are entitled to receive a share in a deceased persons estate, where they have died intestate.

As you can see, it is extremely important that everyone over the age of 18 has a current and valid Will so that in the event of death (expected or unexpected), your estate will be dealt with in accordance with your wishes.