Who inherits my estate if I die without a Will?

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  • January 16, 2015

Who inherits my estate if I die without a Will?

Assets you own which are not picked up by your Will pass on your death to your next of kin.
There are some exceptions to this, for example

  • assets you own as a joint tenant with another person,
  • your superannuation if that goes directly to a dependent of yours
  • assets in which you only had a life estate
  • you are an indigenous person and a distribution order is made.

Here is a basic table to illustrate who could be your next of kin and how they would share in your estate:

You are survived by Who are your next of kin and what they get
One spouse but no children of yours (unless the spouse is also their mother) The surviving spouse takes all
One spouse and any children (or remoter issue) of yours who are not also issue of that spouse
  1. The surviving spouse takes
    1. your personal effects
    2. a cash legacy of $350,000 adjusted by CPI from December 2005
    3. half the balance

    That spouse may be able to acquire specific assets from the estate for their market value as part of the spouse’s share or by paying for them

  2. The surviving children take half the balance.
    Remoter issue take the share their parent would have taken if the parent has already died.
More than one spouse (eg a person to whom you are legally married and/or one or more de facto spouses) and no issue of yours The surviving spouses take your estate in shares agreed by them or by the Court
More than one spouse and children or remoter issue of yours
  1. The surviving spouses share
      1. your personal effects
      2. the cash legacy
      3. half the rest of your estate

    as agreed between them or ordered by the court

  2. Your children share the rest equally. Any remoter issue of yours take the share of a deceased child of yours or parent of theirs
Your children and/or any remoter issue but no spouse Your children equally share the estate. If one of them did not survive you but his/her children (or remoter issue) did, then those grandchildren of yours take the share of your deceased child or of their parent.
No spouse, no children or remoter issue, but a parent The surviving parents take the whole estate. If only one is alive, that parent takes the entire estate, or, if both are alive, they share it equally.
No spouse, children or remoter issue and no parent Your surviving brothers and sisters equally share the estate, with issue of a deceased brother or sister taking that share
No spouse, no children or remoter issue, no parent, no brother or sister and none of their issue, but a grandparent The surviving grandparent (grandparents) take the whole estate.
No spouse, no children or remoter issue, no parent, no brother or sister or their issue Surviving uncles and aunts equally take the whole estate, with issue of a deceased uncle or aunt taking the deceased uncle’s or aunt’s share.
None of the above The State of New South Wales takes the whole estate

The reference in the table to someone surviving means that the person has survived you for at least 30 days (unless the following note applies)
NOTE: If none of the people described in the table is alive on your death, your assets (apart from the exceptions) will pass to the NSW State Government!

There are exceptions, including:

  • Assets you own as joint tenant with someone else
  • Your superannuation benefits if paid directly to a dependent of yours.
  • Assets in which you only have a life interest and
  • Assets of yours if you are an indigenous person and a distribution order is made.

As you can see, the outcomes set out above may be vastly different from what you want to happen. You can overcome those outcomes in your Will.