If no will is found, it is usually presumed the deceased died intestate, that is, without a will.
Intestacy may occur not only where a person fails to make a Will but also for other reasons such as:
• the Will fails to properly dispose of all their assets
• the Will is not valid because it has not been signed and witnessed according to the law
• the person did not have mental capacity to make a Will
• the Will has been poorly drafted and the legal rules of construction have not been followed.
Sometimes a person may die partly testate and partly intestate. This occurs where part of the Will is valid but part is invalid. This may result in even more inconvenience, delay and expense than administering a full intestate estate.
Your estate does not automatically pass to the State (Crown), as is often assumed. The Succession Act 2006 (NSW) sets out the order in which your eligible relatives will inherit your estate. It is only if you die without eligible relatives that your estate will pass to the State.
It is always better to make a will - that way you make your own decisions about who will inherit your estate, rather than having the intestacy rules apply. You can choose to benefit your favourite charity, a friend or a remote relative who may not be included under the intestacy rules. In addition, you will save your family and loved ones a great deal of administrative work, anxiety and pain if you have left a clear will, rather than making them go through the process of establishing themselves as eligible relatives.
If the deceased owned property as a joint tenant, the property passes automatically to the surviving tenant regardless of a will or the intestacy rules. This joint property is not included as part of the deceased's estate.
However, if the deceased had held property as a tenant in common (that is, if property was co-owned through having a share in it), the share would pass to their beneficiaries as part of the estate.
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