INTESTACY (NO WILL)

In New South Wales, if a person dies without a valid will, they are deemed to have died intestate and their estate will be dealt with and distributed in accordance with Chapter 4 of the Succession Act 2006 (NSW).

WHEN IS LETTERS OF ADMINISTRATION REQUIRED?

When a person dies without a will, and the deceased has sufficient assets to warrant a grant, then Letters of Administration will be required to administer that person’s estate. These assets can include real estate, shares, cash held in bank accounts. Sometimes a grant may be required for life insurance and superannuation.

Property cannot be sold, or assets distributed without obtaining the authority from the Supreme Court of New South Wales.

WHO IS ENTITLED TO APPLY FOR LETTERS OF ADMINISTRATION?

There are only certain people entitled to a grant of Letters of Administration and that is determined by who survived the deceased and their entitlements pursuant to Chapter 4 of the Succession Act 2006 (NSW).

If the deceased died leaving a spouse, then that spouse has the priority to apply for Letters of Administration.

If the deceased died without a spouse, the application may be made by the deceased’s children.

If the deceased died leaving no spouse or children then the application may be made by:

Parents, if no surviving parents;
Siblings, if no surviving siblings;
Grandparents, if no surviving grandparents;
Aunts or uncles, if no surviving aunts or uncles;
Cousins

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WHO IS ENTITLED TO RECEIVE THE DECEASED'S ESTATE UNDER INTESTACY?

When a person dies intestate, who is entitled to their estate is determined by Chapter 4 of the Succession Act 2006 (NSW) and is all based upon who survives who. If you have a loved one who died without a will, their estate will be distributed in the following order:

Where the deceased leaves a spouse and a child or children AND that child or children is also the child/children of that spouse: the spouse takes the whole of the estate.
Where the deceased leaves a spouse and child from a previous relationship: the spouse is entitled to receive:
- The personal effects of the deceased;
- $350,000.00 but adjusted by the Consumer Price Index;
- One half of the remainder of the estate.
- The deceased’s children are entitled to receive an equal share of the other half remainder of the estate.
Where the deceased leaves more than one spouse but no children: The spouses are entitled to equal shares of the estate however, agreement can be made as to distribution between the spouses.
Where the deceased leaves children only: The children receive the estate in equal shares between them. If a child of the deceased has already died leaving children (grandchildren of the deceased), the grandchildren are entitled to their parent’s share.
A child means blood related or adopted children. Unfortunately, step-children are not entitled.
Where the deceased leave no spouse or children: The parents of the deceased are entitled to receive the whole of the estate in equal shares.
Where the deceased leaves no spouse, children, or parents: The deceased’s siblings, including those that are of half-blood, receive the whole of the estate in equal shares. If any of the siblings of the deceased died prior to the deceased, and that sibling had children, their children (being the deceased’s niece/nephew) will take their share that their parent would have otherwise received.
Where the deceased leaves no spouse, children, parents or siblings: The grandchildren of the deceased receive the whole of the estate in equal shares.
Where the deceased leaves no spouse, children, parents, siblings or grandparents: The deceased’s aunts and uncles, including half-blood aunts and uncles, receive the whole of the estate in equal shares.
Where the deceased leaves no spouse, children, parents, siblings, grandparents, aunts or uncles: The first cousins of the deceased receive the whole of the estate in equal shares.
No spouse, children, parents, siblings, grandparents, aunts, uncles, or first cousins: The New South Wales Government will receive the whole of the estate.

WHAT IS THE DEFINITION OF A SPOUSE?

In order to be determined as a spouse of the deceased, a person must either be:

(a) married to the deceased at the time of their death;

(b) be in a registered relationship, including an interstate registered relationship, with the deceased at the time of their death; or

(d) be in a de facto relationship at the time of death that resulted in the birth of a child.

WHAT IS THE DEFINITION OF A CHILD?

A child of the deceased person is defined as a blood related child, or a child that was lawfully adopted by the deceased. Both children have equal legal rights if inheriting under an intestate estate.