What is intestacy?

Intestacy occurs when the deceased fails to effectively dispose of property by a valid gift by will. To alleviate this problem, Chapter 4 of the (NSW) Succession Act 2006 sets out the rules as to how the intestate estate is distributed for a person with no will.

There can be no distribution to a person unless they survive the intestate. Survive is defined as:

  • Born before the intestate’s death and live at least 30 days thereafter; or
  • Born after the intestate’s death where gestation in the uterus commenced before death and live at least 30 days after the intestate’s death.

Order of Succession:

If there is no Will then distribution of an Estate is more complicated. An administrator (usually the next of kin) will be appointed instead of an executor.

The deceased’s assets will be distributed in the following order:

  1. Spouse or defacto spouse
  2. Children
  3. Parents
  4. Brothers and sisters
  5. Grandparents
  6. Uncles and Aunts

The rules for intestate succession are as follows:

Spouse and No Children Under section 111 of the Succession Act, the spouse takes the whole estate.
Spouse and Children Under section 112 of the Succession Act, where all the children are of the intestate and the surviving spouse, the spouse takes the whole estate. However, where not all the children are of the interstate and the spouse, as per section 113 of the Succession Act the spouse will take the following:Personal effects; Statutory legacy; and Half remainder of the estate.
Children and No Spouse Under section 127 of the Succession Act, the children will take the whole estate. If there is more than one child then the estate is distributed in equal shares between the children. Where a child has died before the interstate leaving issue who survive the interstate, the grandchildren will take in equal shares the presumptive share the deceased child would have taken.
No Issue and No Spouse Under section 128 of the Succession Act, the whole estate passes to the interstate’s parents in equal shares.
No Issue, No Spouse and No Parents Under section 129 of the Succession Act, brothers and sisters will take in equal shares the estate provided they survive the interstate.If a brother or sister does not survive the interstate but leaves issue, then a presumptive share passes to the children of the deceased brother or sister.
No Issue, No Spouse, No Parents and No Brothers or Sisters or issue of any deceased Brother or Sister Under section 130 of the Succession Act, grandparents will take the whole estate in equal shares if there is more than one surviving otherwise the surviving grandparent will take the whole estate.
No Issue, No Spouse, No Parents, No Brothers or Sisters or issue of any deceased Brother or Sister and No Grandparents Under section 131 of the Succession Act, the Aunts and Uncles will take the whole estate in equal shares if there is more than one surviving.If an Aunt or Uncle fails to survive the intestate leaving a child who survives the intestate that child (i.e. a first cousin) may take their deceased parent’s presumptive share.
Bona Vacantia (circumstances where none of the above apply) Under section 136 of the Succession Act, in default of all of the above the Crown (referred to as the State) takes the whole of the estate.

Spouse’s preferential right to acquire property from the estate:
The spouse is given the right to acquire any property from the estate in lieu of receiving in whole or part a cash distribution.  The right applies where the intestate leaves one spouse only and the Personal Representative gives notice to the spouse of right to elect within 1 month of grant of Letters of Administration.

Posted in: Property.
Last Modified: April 7, 2013

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