In a previous article I discuss 10 reasons why you should have a valid Will and one of these reasons was to avoid intestacy.

Intestacy occurs when a person dies without a valid Will; such a person is said to die intestate. A person can die wholly intestate or partial intestate. A partial intestate is where a deceased’s Will only deals with some of the deceased’s estate. This is why you should have a professionally drafted Will.

Since March 2010 intestacy in New South Wales is dealt with by the Succession Act 2006 NSW (“The Act”). The Act sets out the specific Order and priority as to how the intestate estate is to be distributed to the living relatives of the intestate that survives the intestate by 30 days.

Before I explain how the Act distributes the intestate’s estate to their surviving relative I need to explain the meaning of some basic terms used in the Act:

“Brother or Sister” means if they have one or both parents in common with the intestate.

“Domestic partnership” a person is in a domestic partnership with the intestate if their relationship is registered in accordance with the Relationships Register Act 2010 NSW or the relationship has been in existence for a continuous period of 2 years or there is a child.

“Indigenous person” is a person who:

(a)   Is of Aboriginal or Torres Strait Islander descent, and

(b)   Identifies as an Aboriginal person or Torres Strait Island, and

(c)    Is accepted as an Aboriginal person by an Aboriginal community or as a Torres Strait Islander by a Torres Strait Island community.

“Spouse” of an intestate is a person:

(a)   Who was married to the intestate immediately before the intestate’s death, or

(b)   Who was a party to a domestic partnership with the intestate immediately before the intestate’s death.

In next week’s article I will explain how the intestate’s estate is distributed and the order of priority in accordance with the Act.

As always, the answers provided are for your general information only and we ask you to call our office on 1800 650 656 to obtain detailed legal advice for your individual situation.

Peter McManus | Wills and Estate Planning Solicitor.