Dying without a Will is known as dying intestate.  The law will then dictate how your property is to be divided among your relatives (which may be contrary to your wishes) and any legal or Court costs will be paid from your estate.  If a person dies without making a Will, all property and monies are disposed of according to the "rules of intestacy".

The basic principle is that the estate is distributed to the next of kin.  There is a strict order as to who gets the estate.  If no-one falls in the first class, the whole estate passes to the next class and so on until someone qualifies to receive the estate.  Once there is a person qualifying in a particular class, the whole estate passes to that class, and no classes lower in the order receive any of the estate.  The order is as follows:

  • Spouse (or de facto spouse) and no children.  The whole of the estate passes to the surviving spouse. 
  • Spouse (or de facto spouse) and children, then:
    • If the deceased's estate does not exceed $150,000 the surviving spouse receives the whole estate.
    • If the deceased's estate exceeds $150,000,
      • the spouse receives the first $150,000 as well as the household effects (not including the deceased's personal effects) and one-half of the remaining estate.  The children of the deceased take the other half of the remaining estate;  OR
      • if there is a matrimonial home, the surviving spouse may elect to take ownership in full or partial satisfaction of his or her interest.  This is possible even if it means the children receive nothing.
  • No surviving spouse or de facto spouse, but there are children.   The children get equal shares of the estate.  If a child of the deceased died before the deceased and had children, those grandchildren will take the child's share. 
  • No spouse and no children.   The parents get equal shares of the estate.
  • No spouse, children or parents, the members of one of the following classes receive the whole estate in this order: brothers and sisters; half brothers and half sisters; grandparents; uncles and aunts; and half-blood uncles and aunts. 
  • If no one qualifies the estate passes to the Crown (ie the NSW State Government).  Dependants, cousins or close friends can make an application to share in the estate.  Applications are considered on merit and decisions are purely discretionary.

Also remember an out-of-date Will is probably worse than no Will at all for the complications it can create.   Marriage, births, divorce, deaths or asset change could all demand a change to the Will therefore it should be reviewed in light of any such changes.