What happens if you die without a Will in NSW?

By Nicholas Marouchak

02 February 2021 - 3 min read

what happens if you die without a will in nsw

If you die without a Will, then what you own is divided according to the ‘rules of intestacy’ in NSW.

The rules of intestacy refer to the automatic way someone’s ‘estate’ is divided among the surviving family if they die without a valid Will. These rules can be found in chapter 4 of the Succession Act 2006 (NSW).

What does estate mean?

What does ‘estate’ mean?  It basically means everything you own when you die except some joint assets (which generally go to the other joint owners) and a few other exceptions (such as money in trust and superannuation).

You can read more about how to make sure your super goes to the right person here.

What will my spouse be left?

If you die leaving a married or de facto partner, and the only children you have are from this relationship, then your partner will be left your ‘entire estate’.

What if I have more than one partner?

If, for example, you are:

  • still legally married but separated from your spouse; and
  • you’ve started a new a de-facto relationship with someone else,

Your estate will be divided equally between both partners.

What if I have children from a previous relationship?

Your partner will be entitled to all your personal effects (e.g your property and furniture) as well as what’s called a ‘statutory legacy’ (a gift of money) of $350,000. This amount it adjusted, every year, according to inflation. Your spouse can claim interest on this amount if it has not yet been paid within a year after death.

Your spouse will also be entitled to 50% of the whatever is left over of the estate.

The other 50% will be divided equally between ALL other children, including those from a previous relationship AND from the current relationship.

Children but no partner

If you have no partner, your children (biological or adopted) will be entitled to your entire estate, in equal shares.

Step children are not entitled to inherit anything.

What if I have no partner and no children?

In this case, your parents are entitled to your entire estate, in equal shares. If you only have one surviving parent, then they receive 100% of the estate.

If you have no parents, your estate will be divided equally between your surviving siblings (this includes half siblings, but not step siblings).

If any of your siblings have passed away before you, but they have children of their own (your nieces or nephews), the children will be entitled to the share of their parent (equally).

Other Family

If none of the above scenarios apply to you, your grandparents will be entitled to your estate, in equal shares.

If you don’t have any grandparents that are still alive, your aunts and uncles (full and half-blood) will be entitled to your entire estate, in equal shares. If any of your aunts or uncles have died before you, their children (your first cousins), will be entitled to this share.

If you do not have any of these family members alive, then your estate will pass to the NSW Government!

Get a Will

Does all this sound over complicated? That is why it’s a good idea to get a Will. Having a Will makes sure your estate is divided in the manner that you want. You can create a legally binding Will online with Estates Plus. We also offer a Wills package for couples.