On the eighth day of Christmas - Celebrate the festive season knowing that your Will is in order

Posted by Luisa-Maria Maroun on 03 December 2015
On the eighth day of Christmas - Celebrate the festive season knowing that your Will is in order


The term “Intestate” is derived from the Latin word “intestatus” meaning a person who dies without a Will. 

Intestacy can occur not only when a person dies without a Will, but also in the following circumstances:


  • If an existing Will does not properly dispose of all of the person's  assets;
  • If the existing Will is invalid due to poor drafting or for a technical reason (e.g. it has not been signed and witnessed correctly in accordance with the law); or
  • If the person making the Will did not have legal capacity to make a Will at the time that it was signed.

A person may also die partly testate and partly intestate. This occurs where part of the relevant Will is valid, but part is invalid.  This can cause great inconvenience, delay and expense when it comes time to administering the person's estate.

How is an intestate estate dealt with?

In the event that you die without leaving a valid Will, then a relative or spouse can apply to the Supreme Court of NSW for “Letters of Administration” (Probate is the term used when the person dies “testate” i.e. leaves a valid Will in place.)

Once an administrator is appointed to the estate, their duty will involve collecting the deceased’s assets, and distributing them following payment of any debts and taxes.  The administrator must establish the family tree using evidence in the form of birth certificates and genealogy evidence, which can be an expensive and prolonged task, especially if relatives reside overseas or are difficult to locate.

If I don’t have a Will who inherits my assets?

Your estate will be divided in accordance with the provisions of the Succession Act 2006 (NSW).  This can be a costly and a time consuming procedure due to the additional paperwork that is involved.

The Act provides for intestate estates to be distributed as follows:

  • If a person dies leaving a spouse or spouses (includes domestic partner/s) and no children,  the spouse or spouses inherit the whole intestate estate;
  • If a person dies intestate leaving a spouse or spouses as well as any children of the one or more spouse/s then the spouse/s inherit the whole intestate estate;
  • Conversely if there are children of another relationship other than the spouse/s (for  example children from an ex-spouse or ex-partner with whom they were is a domestic relationship,  the estate is divided between the spouse/s and the surviving children in accordance with a formula;
  • In situations where there are multiple spouses, their entitlement is shared in accordance with a written agreement made between the spouses or pursuant to an order from the Supreme Court;
  • Where the deceased leaves no spouse and only children, the children are entitled to a share of the estate, and their share is determined with respect to the closeness of their family relationship;
  • If the intestate dies without a spouse/s or children, then the distribution pattern is similar to that which has been outlined above. Essentially, the order of relatives entitled to pursue a claim is as follows:

i.    Parents;
ii.   Siblings; 
iii.  Grandparents;
iv.  Aunts and Uncles; and
v.  First Cousins

The major disadvantages of dying without a Will:

  • The law determines how your assets are to be divided;
  • It can take much more time, and be much more costly to finalise your estate if you die without a Will as there are more formalities and paperwork; and
  • You do not have a choice as to who will be appointed as the administrator to manage your estate.

Anyone over the age of 18 should give consideration to making a legally valid Will.

The death of a loved one is an emotional and stressful event in our lives.  You can alleviate some of this burden on your surviving family by ensure you have a valid Will in place prior to your passing.

Contact us to discuss your estate planning needs.