The death of the Queen of Soul, Aretha Franklin, is a reminder to us all of the importance of having a properly written will.
Aretha died without a will to specifically say to whom she wanted receiving the millions of dollars in her estate as well as any personal possessions.
Assuming that all things within her immediate family are amicable, her sons will receive an equal share of her estate. However, Aretha was also very involved in charity work and it is unlikely her charities will receive anything from her estate even if she had wanted that to happen.
A person who dies without leaving a will is said to have died intestate. In the United State and also in Australia, each state has its own intestacy laws. In NSW it is the Succession Act 2006 which sets out who is entitled to your estate and in what portion. Here is the priority of entitlement.
- Spouse where there is no children of the deceased – the spouse is entitled to the complete estate.
- Spouse where there is children of the deceased and spouse – the spouse is entitled to the complete estate.
- Spouse where the deceased has children from a prior relationship – the spouse is entitled to the personal belong, statutory legacy and 50% of the remainder of the estate. The children are entitled to the remaining 50% which is to be shared equally.
- Children where the deceased had no spouse – children are entitled to the estate in equal shares. If one of the children has also died but has children, then those children receive the share that their parent would have received if they survived in equal shares.
- If the deceased does not have any children or a spouse – the deceased’s parents are entitled to the estate in equal shares.
- If the deceased has no parents – the deceased’s siblings are entitled to the estate in equal shares.
- If the deceased has no siblings – the deceased’s grandparents are entitled to the estate in equal shares.
- If the deceased has no grandparents – the deceased’s aunties and uncles are entitled to the estate in equal shares. If an Aunty or Uncle has died but had children, then those children receive the share that their parent would have received if they survived in equal shares.
- If the deceased has no aunties and uncles (and cousins) – the NSW Trustee is entitled to the estate.
Because laws vary between states and territories, if you have any assets and/or reside outside of NSW then different laws may apply to different parts of your estate. It is also important to consider the tax implications of your decision about where to leave your estate.
The best way to ensure that your wishes are carried out and that your loved ones or charities are provided for is to have a will. Your will needs to be written properly to reduce the risk of it being challenged.
Our wills and estates team can help take the stress out writing a will and estate planning. We can also help you bring a claim against someone else’s estate if you feel you’ve been unfairly left out of their will.
