Back to Research Insights >> Deceased estates: death may be inevitable but need not be complicated

A terrible thing about growing up is thinking about all those grown-up things. Understandably, dying is not something any of us really want to dwell on. However, if no will is found on that fateful day, it is usually presumed you passed away intestate. That is, without a will.

Intestacy may occur not only where a person fails to make a will but also for other reasons such as:

• the will fails to properly distribute or dispose of all their assets
• the will is not valid because it has not been signed and witnessed according to the law
• the person did not have the mental capacity to make a will
• the will has been poorly drafted and the legal rules have not been followed

Complicating things further, sometimes a person may die partly testate and partly intestate. This occurs where part of the will is valid but part is invalid. This may result in even more inconvenience, delay and expense than administering a full intestate estate.

Your estate does not automatically pass to the state (crown), as many assume. The Succession Act 2006 (NSW) sets out the order in which your eligible relatives will inherit your estate. Other states have corresponding legislation. It is only if you die without eligible relatives that your estate will pass to the state in New South Wales.

It is always better to make a will. That way you make your own decisions about who will inherit your estate, rather than having the intestacy rules apply. You can choose to benefit your favorite charity, a friend or a remote relative who may not be included under the intestacy rules. In addition, you will save your family and loved ones a great deal of administrative work, anxiety and pain if you have left a clear will, rather than making them go through the process of establishing themselves as eligible beneficiaries. You might see the process as simple as liquidating assets and distributing the profits evenly, but how about those family heirlooms such as jewelry, medals, heirlooms and other things money cannot buy?

In the case of real estate, if the deceased owned property as a joint tenant, the property passes automatically to the surviving tenant regardless of a will or the intestacy rules. This joint property is not included as part of the deceased’s estate. However, if the deceased had held property as a tenant in common (that is, if property was co-owned through having a share in it), the share would pass to their beneficiaries as part of the estate.

The best way to ensure you have covered all bases is to get advice from a licensed legal or estate planning professional. You can also learn more about intestacy on the NSW Trustee and Guardian website.

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