Approximately half of Australians do not have a Will, according to the NSW Trustee & Guardian. This figure is almost certainly an underestimation. A more realistic figure is that 70% of Australians do not have a Will.
There are various consequences of not having a Will, including that a person’s estate may end up being received by unintended beneficiaries. Other consequences include that the estate may be controlled by an unintended person, close relatives may be inadequately catered for, legal disputes may arise as to who should inherit, unintended tax consequences may eventuate, and additional time and costs will almost certainly be involved in administering a deceased estate where there is no Will.
If a person dies without a Will, and does not leave a spouse or children, there are rules that set out who is to inherit. As a general proposition, the following inherit in the order set out below:
- Parents
- Siblings
- Grandparents
- Uncles and aunts
- Next of kin
- The Crown
Different states and territories of Australia have different rules in relation to who inherits.
In New South Wales, the Succession Act 2006 sets out the law in relation to intestacy.
In New South Wales, a “spouse of an intestate” person is defined as a person:
- Who was married to the intestate immediately before the intestate’s death; or
- Who was a party to a domestic partnership with the intestate immediately before the intestate’s death.
The law in relation to succession is complex and it is important to obtain legal advice based on your individual circumstances.
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