NSW will and inheritance law

March 2010 saw some huge changes to NSW intestacy (‘dying without a valid will‘) laws. If you need help with estate law and inheritances, call lawyer Vanessa Ash for legal support and representation. 

     Spouse
The definition of spouse is now a married person, or a domestic partner, with ‘domestic partner’ replacing de facto spouse. This relationship must be a de facto relationship that has lasted at least two years, or is a relationship that involves the birth of a child. This term also incorporates same-sex couples.

     Multiple Spouses
This refers to a combination of a married person (who might be separated) and/or a domestic partner or partners of the same or opposite gender. This is where things can get complicated, and although having multiple marriages concurrently is illegal (bigamy), it is not illegal to have multiple meaningful and legally-binding relationships. You can, in fact, be married, and have a de facto partner at the same time.

     30-day Survivorship
If a person is to receive a benefit of a person who died without a will, this relative must stay alive for at least 30 days after the deceased. There was no rule such as this previously.

     Issue
An issue is a person’s direct line of descent, and includes children and grandchildren and great-grandchildren. If your child or children are alive then ‘issue’ refers just to them, however it gets passed on down the line to their children, and if necessary, their children’s children. It is a bloodline link.

Distribution Laws

     Spouse/s no issue
One or more spouse (including domestic partner) with no issue (kids) – the spouse or spouses inherit the whole intestate estate. 

     Spouse/s and issue of spouse/s
Spouse/s inherit whole estate

     Spouse/s and issue of another relationship
If there are children of another relationship besides that of the spouse/s (including domestic partner) for example, the issue of an ex-spouse or ex-domestic partner, then the estate is divvied up according to a formula between the spouse/s and issue. This can include children of the deceased intestate and current spouse/s and children of the ex-partner. The formula is:

1. One spouse receives, or spouses share between them:

A) a legacy of $350,000 as adjusted by the Consumer Price Index according to a special formula set out in intestacy law (previously it was $200,000, and only one partner was entitled); and
B) the intestate’s personal effects; and
C) half of the remainder of the intestate’s estate.

2. All children, including those of the past relationship and children of the spouse/s, receive remaining parts of the estate.

     Sharing between multiple spouses
If multiple spouses survive the the intestate, the inheritance is shared as follows:

A) in accordance with a written agreement made between themselves and submitted to the estate’s administrator; or
B) in accordance with a Supreme Court Order; or
C) equally between them.

     Single spouse’s right to acquiring property
Another addition to the laws is that when there is just one spouse, their right to acquire any of the property that belonged to the deceased remains. The purchase price paid for the property is paid out first from the spouse’s entitlement, and if insufficient, from his or her own finances. The spouse may acquire any real estate or personal property such as cars, boats and shares.

     Only issues (children, grandchildren, great-grandchildren, etc.) survive
If there is no spouse left, issue are entitled, with their share depending on the proximity of their family relationship. If the deceased is only survived by a child or children, the children all share in the estate equally.

If any of the intestate’s children are already deceased, leaving their own children (grandchildren), then these children will also share in the portion of the estate that their parent would have received. Children of grandchildren therefore may share in this estate if their parents are deceased. This continues until there are no more issue.

     Other surviving relatives
If there is no spouse and no issue, the distribution pattern is thus:

  • Parents
  • Siblings (full and half-blood siblings are equal), with any deceased siblings having their share passed on to their issue
  • Grandparents
  • Aunts and uncles (full and half-blood are equal)
  • First cousins (this is new – cousins were not previously counted)

     Indigenous People
For intestacy purposes, an indigenous person is classified as someone of Aboriginal or Torres Strait Islander descent, and identifies as an Aboriginal or Torres Strait Islander descent, and is accepted in that community. The new laws provide provisions for distribution of Indigenous estates based on traditional laws and customs.

     Petitioners to the Crown for waiver of its right to the intestate’s estate now include: 

  • The intestate’s dependents (also applies in family provision claims)
  • Anyone with a just or moral claim on the intestate
  • Any organisation or person whom the intestate might reasonably have wanted or been expected to have made a provision – this might include charities the deceased did volunteer work with for many years, or made regular donations to – the charity could petition the government for some or all of the estate
  • The trustees of any person or organisation above

All your wishes must be laid out in a will because intestacy laws may not end up reliably working in your favour.

Important Note: This list is a guide only and although all care is taken to have up-to-date information, it is not guaranteed to be complete. Please check with your financial adviser, lawyer Vanessa Ash, or local government before making plans. 

Write your own story. Call Vanessa Ash and Associates today.

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