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If you decide not to make a will there are rules regarding who gets your estate when you die.
These rules apply when you have no will and also where you have not included all of your
property in a valid will. If you die without a will it is called dying “intestate”.

The intestacy rules list 9 potential beneficiaries. If no beneficiary falls into the first class the
whole estate is divided equally between the second class etc.

Once there is a person qualifying in a class, the whole estate passes to that person or
persons and no-one in the lower classes receive anything.

The 9 classes are:-

1. Spouse (or defacto) only;
2. Spouse (or defacto) and children;
3. Children only;
4. Parents;
5. Brothers and sisters;
6. Half-brothers and half-sisters;
7. Grandparents;
8. Uncles and aunts; and
9. Half-blood uncles and aunts.

If no members of your family are alive at the time of your death, the Crown takes the whole
of your estate.

 

Class 1: Spouse and no children
If you leave a surviving spouse and no children, your spouse will receive your whole estate.
This is the case even if you have separated but not divorced. It is therefore essential to
receive an order for divorce to stop your former spouse obtaining your whole estate.

 

Class 2: Spouse and children
If the value of your estate is less than a prescribed amount (around $200,000), then your
spouse takes the whole estate. If the value of the estate exceeds this amount, then your
spouse receives:
a) household items;
b) the prescribed amount plus interest; and
c) one-half of the remaining estate.
The other half of your estate is held for your children. There is also a provision for the
spouse being able to elect to take your interest in a shared home even if this reduces the
share passing to your children.

 

Class 3: Children only (no spouse)
Your whole estate is held in trust for your children.

 

Class 4: Parents (no spouse or children)

All of your estate passes to your parents in equal shares. If one parent has already died then
your whole estate goes to the other parent.

Class 5, 6, 7, 8 and 9: No spouse, children or parents
If this is the case, then the following classes of people will take your estate if there are no
members of the preceding class:-

5) brothers and sisters;
6) half-brothers and half-sisters;
7) grandparents (if more than one in equal shares);
8) aunts and uncles (if more than one in equal shares);
9) aunts and uncles of half-blood relation (if more than one in equal shares).

It is important to consider who your estate will be distributed to upon your death if you do
not make a will. If you are happy for this to occur then you do not need to make a will,
however your individual circumstances should be considered in relation to these rules as to
how they will affect your estate distribution.

The above is an indication only and it is advisable to obtain legal advice as to how your
estate would be distributed.

If you would like to discuss the above with our principal, Kym Chapman, please contact her on 0416102577.
Kym Chapman & Associates provide legal advice for Northern NSW and have offices based in Byron Bay and
Cabarita.