Recent changes to intestacy provisions in NSW

Changes to the legislation governing the administration of intestate estates (ie no will or the will is legally invalid) in NSW have recently been introduced. If you don't have a will or have children from more than one relationship it is timely to review your situation.

Under the former legislative provisions, the division of an intestate estate when the deceased dies leaving a surviving spouse and children depended on the value of the estate. When the deceased’s estate exceeded the statutory amount of $200,000, the deceased’s personal effects and household items, the statutory amount of $200,000 and one half of the remainder of the estate passed to the surviving spouse. The other one half of the remainder of the estate passed to the deceased’s surviving children. If the value of the deceased’s estate was less than $200,000, then the whole of the deceased’s estate passed to the surviving spouse. This was regardless of whether or not the deceased left any children from previous relationships.

Under the new provisions, when an individual dies intestate, leaving a surviving spouse and children, if all the surviving children are also the children of the surviving spouse, the whole of the deceased’s estate will pass to the surviving spouse, regardless of the value of the deceased’s estate. If the deceased left a surviving spouse and also a surviving child or children who are not also the child or children of the surviving spouse, then the spouse is entitled to the deceased’s personal effects and household items, a statutory legacy (which is the amount of $350,000 adjusted in accordance with the CPI index) and one half of the remainder of the estate. The surviving children who are not also children of the surviving spouse will be entitled to one half of the remainder of the estate.

Implications

These new developments in the intestacy legislation show a move in the law towards recognizing that family relationships have become increasingly complex and attempts to ensure that provision is made for children of the deceased from previous relationships. However, as these assumptions in the law may not reflect the intentions of individuals, this could lead to situations where individuals who the deceased did not want to provide for, end up receiving a substantial portion of the estate. These considerations highlight the importance of having a Will in place which sets out your intentions and making sure that you update your Will as necessary and particularly if family circumstances change.

If you would like to have your Will prepared or updated, our solicitors in both our Adelaide and Sydney offices are happy to discuss your particular situation with you and work with you to prepare or update your Will.

Author: Elaine Cheung (Sydney)