What happens if I die without a Will?

Published 18 Dec 2017

Deciding what will happen to your estate is important. You want to make sure the people who matter to you are provided for and your possessions are divided how you wish.

However, if you fail to draw up a Will - or if it becomes invalidated for some reason - you will be left 'dead intestate'. This means your express wishes for what happens when you die will not be considered, and your possessions will be divided according to NSW law.

How could my Will become invalid?

In NSW, you are legally required to commit the terms of your Will to paper - this formalises proceedings in the eyes of the law. If you never had time to draw one up, even informally, your possessions will be divided as per court rulings, regardless of your intentions.

For your Will to be formalised on paper, it also needs to be:

  • Drafted according to legal rules of construction;
  • Signed by yourself; and
  • Noted in the presence of at least two witnesses, who also need to sign the document.

Even if your Will meets these requirements, it can still be invalidated if you fail to deal with your entire estate in the document or if you are deemed to be mentally unfit at your time of writing. In the event of these outcomes, how your estate is divided is taken out of your hands.

How will my estate be divided if my Will is invalid?

In NSW your assets will be divided according to a predetermined formula, with your spouse/s and issue/s receiving all of your assets.

Spouse is defined as either a partner through marriage or a person you have lived with for two or more years and/or have had a child with. Issues, meanwhile, is the term used for lineal relations, like children and grandchildren.

The formula covers a range of different estate arrangements, and is determined by the level of connection to the deceased. If the deceased has no spouse/s or issue/s, possessions can be distributed out to extended family.

However, these intestate laws don't cover gifts to friends, charities or other parties, or have any bearing on cultural or religious sensitivities. That is why it is so important to have a valid and regularly updated Will.

How is intestate dealt with?

The Supreme Court of NSW will appoint an administrator to look after your estate. They will make funeral arrangements if none are predetermined and will gather assets for distribution. They are also charged with finding proof of kinship through certification.

What can I do?

Keeping your Will updated by validating it with a legal professional helps to avoid intestate issues after your death.

Alternatively, if you are experiencing an intestate case in which you think the deceased would not be satisfied with how their possessions are being divided, seeking legal help is advisable.

Contact the team at Malouf Solicitors today for more information on the Will and Legacy services we provide.

Please call us on 02 8833 2000 to speak with a lawyer

I remain extremely grateful for Maloufs legal representation related to my financial management of the estate of my brother and for your continuing help and advice in this matter. As an aside, I always recommend Maloufs to my friends and family members who are seeking the best legal representation - only last week, I strongly advised a close family friend that their best interests would be served by arranging an appointment at your Parramatta offices.
John of Parramatta NSW

Parramatta Office:

Level 5/146 Marsden Street
Parramatta NSW 2124

PO Box 945
Parramatta NSW 2124

Phone: 02 8833 2000
Fax: 02 9687 3697

mail@maloufsolicitors.com.au