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What if there is no Will?

No Win, No Fee LawyersWhat happens if there is no valid Will?

If a person died without a valid Will their Estate will be distributed according to the rules of intestacy. The intestacy laws provide a predetermined formula for how the person's Estate will be distributed.

See Also: If U Don't Make A Will Like Prince, Who Will It All Go 2? (Turnbull Hill Lawyers)

What will I get if a person dies without a Will?

How the Estate is distributed depends upon whether the deceased died on or before 1 March 2010 and also which state's law operates in relation to the Estate.

To get a better understanding of which intestacy laws apply to your situation, read on below and click the situation that applies to the deceased person in question and read the corresponding intestacy laws.

See Also: Changes to the Law of Intestacy (Turnbull Hill Lawyers)

How do I get Probate if there is no Will?

If the deceased person either died without a Will or the Court has declared the only known Will to be invalid then you might be able to apply for the Court to become the Administrator of the deceased's Estate.

A grant of 'Letters of Administration' enables the person who holds the grant to collect the assets of the deceased and distribute them. Letters of Administration acts as a substitute for a grant of "probate" in these scenarios.

See Also: Probate

Why is it important to have a valid Will in place?


Applicable Intestacy Laws in NSW

1. If there is (1) a spouse and/or De Facto and (2) no issue

A person is considered the "spouse" of a deceased person if they were married to that person or they were their "domestic partner". To be a "domestic partner" a person must have either been in a de facto partnership with the deceased for at least 2 years, or their partnership must have resulted in the birth of a child.

A domestic partner may be someone of the same or opposite sex. A deceased person is also capable of having multiple spouses and these multiple spouses can be any combination of a married person and/or domestic partner or partners of the same or opposite sex.

Where multiple spouses share a distribution they receive either; in accordance with a written agreement between themselves submitted to the Administrator, in accordance with a Court order, or equally.

The deceased's "issues" are their lineal descendants. That is, the deceased's children, grandchildren, great grandchildren, and so on. Children who are adopted are the children of their adoptive parents and cease to be the children of their natural parents.

If the deceased died leaving a spouse (or spouses) and no issue, then the spouse (or spouses) inherit the entire Estate.

Where there is only one spouse then that spouse is entitled to any of the property that belonged to the deceased. The purchase price paid is first paid from their entitlement from the deceased's Estate and if that amount is insufficient then the spouse must pay the remainder from their own resources. The spouse may acquire any real Estate or personal Estate such as a car, boat or shares.

The Act also makes provision for the distribution of the Estates of indigenous people based on indigenous laws and customs.

2. If there is (1) a spouse and (2) an issue of that spouse

A person is considered the "spouse" of a deceased person if they were married to that person or they were their "domestic partner". To be a "domestic partner" a person must have either been in a de facto partnership with the deceased for at least 2 years, or their partnership must have resulted in the birth of a child. A domestic partner may be someone of the same or opposite sex. A deceased person is capable of having multiple spouses and these multiple spouses can be any combination of a married person and/or domestic partner or partners of the same or opposite sex.

Where multiple spouses share a distribution they receive either; in accordance with a written agreement between themselves submitted to the administrator, in accordance with a Court order, or equally.

The deceased's "issues" are their lineal descendants. That is, the deceased's children, grandchildren, great grandchildren, and so on. Children who are adopted are the children of their adoptive parents and cease to be the children of their natural parents.

If the deceased died leaving a spouse (or spouses) and an issue of the spouse (or an issue of one or more of the spouses), then the spouse (or spouses) inherit the entire Estate.

Where there is only one spouse then that spouse is entitled to any of the property that belonged to the deceased. The purchase price paid is first paid from their entitlement from the deceased's Estate and if that amount is insufficient then the spouse must pay the remainder from their own resources. The spouse may acquire any real Estate or personal Estate such as a car, boat or shares.

The Act also makes provision for the distribution of the Estates of indigenous people based on indigenous laws and customs.

3. if there is (1) a spouse and (2) an issue from another relationship

A person is considered the "spouse" of a deceased person if they were married to that person or they were their "domestic partner". To be a "domestic partner" a person must have either been in a de facto partnership with the deceased for at least 2 years, or their partnership must have resulted in the birth of a child. A domestic partner may be someone of the same or opposite sex. A deceased person is capable of having multiple spouses and these multiple spouses can be any combination of a married person and/or domestic partner or partners of the same or opposite sex.

Where multiple spouses share a distribution they receive either; in accordance with a written agreement between themselves submitted to the administrator, in accordance with a Court order, or equally.

The deceased's "issues" are their lineal descendants. That is, the deceased's children, grandchildren, great grandchildren, and so on. Children who are adopted are the children of their adoptive parents and cease to be the children of their natural parents.

If the deceased died leaving a spouse (or spouses) and an issue of another relationship, then the spouse receives (or the spouses share between them) a legacy of $350,000 as adjusted by the Consumer Price Index in accordance with a formula determined by the intestacy laws. The spouse receives (or spouses share) the deceased's personal effects and one-half of the remainder of the deceased's Estate. All issues of the deceased, irrespective of their relationship with any spouse (or spouses) share equally in the remaining part of the Estate.

Where there is only one spouse then that spouse is entitled to any of the property that belonged to the deceased. The purchase price paid is first paid from their entitlement from the deceased's Estate and if that amount is insufficient then the spouse must pay the remainder from their own resources. The spouse may acquire any real Estate or personal Estate such as a car, boat or shares.

The Act also makes provision for the distribution of the estates of indigenous people based on indigenous laws and customs.

4. If the deceased has no spouse, only issues

A person is considered the "spouse" of a deceased person if they were married to that person or they were their "domestic partner". To be a "domestic partner" a person must have either been in a de facto partnership with the deceased for at least 2 years, or their partnership must have resulted in the birth of a child. A domestic partner may be someone of the same or opposite sex. A deceased person is capable of having multiple spouses and these multiple spouses can be any combination of a married person and/or domestic partner or partners of the same or opposite sex.

The deceased's "issues" are their lineal descendants. That is, the deceased's children, grandchildren, great grandchildren, and so on. Children who are adopted are the children of their adoptive parents and cease to be the children of their natural parents.

If the deceased died leaving no spouse but the deceased had issues, then the issues share equally in the entire Estate.

The Act also makes provision for the distribution of the estates of indigenous people based on indigenous laws and customs.

5. No spouse, no issues, but other relatives up to cousins

A person is considered the "spouse" of a deceased person if they were married to that person or they were their "domestic partner". To be a "domestic partner" a person must have either been in a de facto partnership with the deceased for at least 2 years, or their partnership must have resulted in the birth of a child. A domestic partner may be someone of the same or opposite sex. A deceased person is capable of having multiple spouses and these multiple spouses can be any combination of a married person and/or domestic partner or partners of the same or opposite sex.

The deceased's "issues" are their lineal descendants. That is, the deceased's children, grandchildren, great grandchildren, and so on. Children who are adopted are the children of their adoptive parents and cease to be the children of their natural parents.

If the deceased died leaving no spouse and no issue, then the Estate is distributed to the deceased's parents. If the deceased has no parents then siblings inherit. Siblings will inherit irrespective of whether they are whole or half blood siblings. If one (or more) of the deceased's siblings has died, then the issues of any diseased sibling will share in the deceased sibling's benefit.

If the deceased died leaving no spouse, no issue, no parents and no siblings then the deceased's grandparents share in the Estate. If the deceased also has no grandparents their Estate will go to their aunts and uncles. Aunts and uncles inherit irrespective of whether they are whole or half blood aunts and uncles. If the deceased also does not have any living aunts and uncles, then their first cousins will receive benefit from the Estate.

The Act also makes provision for the distribution of the Estates of indigenous people based on indigenous laws and customs.

6. No Spouse, no issues, no relatives

A person is considered the "spouse" of a deceased person if they were married to that person or they were their "domestic partner". To be a "domestic partner" a person must have either been in a de facto partnership with the deceased for at least 2 years, or their partnership must have resulted in the birth of a child. A domestic partner may be someone of the same or opposite sex. A deceased person is capable of having multiple spouses and these multiple spouses can be any combination of a married person and/or domestic partner or partners of the same or opposite sex.

The deceased's "issues" are their lineal descendants. That is, the deceased's children, grandchildren, great grandchildren, and so on. Children who are adopted are the children of their adoptive parents and cease to be the children of their natural parents.

If the deceased died leaving with no spouse, no issue, no parents, no siblings (including whole or half blood), no grandparents, no aunts or uncles and no first cousins; then the deceased property is Bona Vacantia. This means that the government has a right to the property of the deceased.

A person may petition the government and request that the government waiver its right to the deceased's Estate. You have a right to petition the government if you were a dependent of the deceased, you have a just or moral claim on the deceased, you are an organisation or person whom the deceased might reasonably be expected to have made provision or you are the trustee of any such organisation or person.

Adrian Corbould

Adrian Corbould is a Law Society Accredited Specialist in Wills & Estates Law. For more than 15 years he has helped hundreds of clients in contested estate matters. His tenacity and experience make him one of the most sought after Will Contest Lawyers in New South Wales (NSW).

Adrian is an Accredited Specialist within the Contested Wills & Estates Team. In certain circumstances, the team operates on a 'No Win, No Fee' basis. If you'd like to discuss your circumstances with a member of the team, call 1800 707 222 and ask for a Free Appraisal.

 

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