What happens if I die without Will?
If you die without a Will you are said to have died “intestate”. If you die intestate your estate will be distributed according to rules laid down by legislation.
These rules may not distribute your property in a manner you would choose.
What are the laws that govern distribution of an intestate estate?
The distribution of property of a person who dies intestate is governed by Chapter 4 of the Succession Act 2006. This legislation applies to people who die after 1 March 2010.
The legislation also applies if a Will fails to deal with all your property effectively. In this case, there said to be a partial intestacy and the legislation will apply to the part of the estate that has not been dealt with effectively by Will.
What happens if I die without a Will and I have children from different relationships?
Under the Succession Act if you die and you are survived by a spouse, the spouse takes your whole estate. If you die and are survived by a spouse and you only have children from that relationship, your spouse will still take your whole estate.
However, if you die and you have children from another relationship, your spouse and your children will share your estate according to a formula set down by the legislation.
What happens if I die without a Will when I am living in a de facto relationship but I am still legally married to someone else?
This is a common scenario after a marriage breaks down and prior to divorce taking place.
If you have been living in the de facto relationship for two years or the relationship has resulted in a child, both partners will be considered as surviving spouses and your estate will be shared between them.
In certain circumstances, the person administering the estate may make equal division between the spouses. Alternatively the spouses may reach an agreement as to how your estate will be shared between them. If they cannot agree, a court order may be required. This will delay the administration of your estate, add to legal costs and cause further emotional turmoil for your surviving spouses.
If the de facto relationship has not been in existence for a continuous period of 2 years or resulted in a child, your de facto spouse will not be entitled to anything. In this case, the only option available to your de facto spouse would be commence court proceedings under family provision legislation which is costly, time consuming and emotionally draining.
What happens if I have children with one or both surviving spouses?
In this case, your whole estate is still shared between the surviving spouses.
What happens if I have a surviving spouse or spouses but children from a another relationship?
In this situation your estate will be shared between your children and the surviving spouse/s according to a formula set down by legislation.
Case scenario
John separates from his wife Ann and starts living with Jane. John and Jane subsequently have a child. If John dies before he is divorced from Ann, his estate will be shared between Ann and Jane.
If John has children from another relationship, his estate will be shared between all his children and Ann and Jane. Ann and Jane will take John’s personal effects and share a portion of John’s estate (calculated by way of a formula) and the remainder will be shared between all children.
What if I don’t have a spouse or children when I die?
If you have parents, your parents will take your whole estate in equal shares.
If you don’t have parents, but you have brothers and sisters, your brothers and sisters will take your estate in equal shares. If a brother or sister dies before you, his or her children can take that brother’s or sister’s share.
If your parents, brothers and sisters all die before you and your brothers and sisters do not leave children, then your grandparents will take your estate.
If you don’t have grandparents, your parent’s brothers or sisters will take your estate (that is, your uncles and aunts).
If an uncle or aunt dies before you, his or her children can take that uncle or aunt’s share.
What if I die with no living relatives?
In this case the state will take your estate. However, the Succession Act 2006 gives the minister a discretion to make provision for any dependents, or persons who may have a just and moral claim on your estate, or an organization they you might reasonably have supported.