What Happens If You Die Without a Will in NSW?

When someone dies without a will in NSW, the estate is distributed according to the intestacy rules set out in the Succession Act 2006 (NSW). If required, the Supreme Court of New South Wales will appoint a person as administrator to administer the estate and distribute the estate according to law. Here’s what typically happens:

• Application for Letters of Administration: Unlike cases where there is a valid will and the named executor has the right to apply for a grant of probate, where a person dies without a will and no executor named, someone else (usually the deceased’s next of kin and person with the largest interest in the estate) will need to apply to the Supreme Court for a grant of ‘letters of administration‘. Once issued, the administrator will have legal authority to administer and distribute the deceased’s estate.
• Role of the Administrator: The administrator will be responsible for administering the deceased estate, which includes identifying and calling in possession of the assets, paying the deceased’s debts and liabilities (such as personal debts and taxes) and paying the testamentary and administrative expenses (such as funeral and burial expenses, estate tax liabilities, legal costs, court fees, and other estate expenses). These debts must be paid before distributions are made to beneficiaries.
• Distribution of Assets: Once all the deceased’s and the estate’s liabilities have been paid, the administrator will be entitled to distribute the estate in accordance with the order set out in Chapter 4 of the Succession Act 2006 (NSW).

Intestacy Law in NSW: How Your Estate is Distributed

In NSW, the distribution of an intestate estate follows a specific order of priority summarised as follows:

1. Spouse and Children:
   • If the deceased was married or in a de facto relationship at the time of death and there are no children from another relationship, the current spouse is entitled to the whole estate.
   • If the deceased did leave a spouse or a de facto partner and also children from a person other than the spouse or de facto, the spouse is entitled to the deceased’s personal effects, a statutory legacy adjusted for inflation, and half of the remaining estate and the children from the other relationship are entitled to the other half share of the estate.
   • If the deceased was not married or in a de facto relationship but the deceased has children, the children are entitled to the estate in equal shares.
2. No Spouse or Children:
   • If there is no surviving spouse or children, the estate is shared among the deceased’s family members in the following order – parents, siblings, nieces and nephews, grandparents, aunts and uncles, and cousins.
3. No Eligible Relatives:
   • If the deceased died with no eligible relatives, the estate is transferred to the state of New South Wales under the intestate laws.

When a person dies intestate in NSW, the process of administering their estate usually involves applying for a grant of letters of administration, which, if granted, will give the appointed administrator the authority to administer and distribute the deceased’s assets according to the intestacy laws.

How to Apply for a Grant of Letters of Administration

1. Eligibility: The person who may apply to be granted letters of administration is usually the person with the largest interest in the estate. If there is no one entitled to the estate, or those entitled to the estate are unwilling or unable to apply for administration, the estate may be referred to the NSW Trustee and Guardian for administration. The NSW Trustee and Guardian would then apply for administration and administer the estate.
2. Documentation: The application needs to be supported by prescribed forms and supporting documents, including a summons, the deceased’s death certificate, proof of identity of the applicant, and an affidavit detailing the relationship to the deceased and the assets of the estate.
3. Filing the Application: The application needs to be made with the Supreme Court of New South Wales supported by the prescribed forms and the require court filing fee must be paid.
4. Notice of Intention: Before the court grants letters of administration, a notice of intention to apply for administration must be published. This allows any potential claimants or creditors to come forward.
5. Grant of Letters of Administration: If the application satisfies the relevant requirements, the court may proceed with issuing a grant of letters of administration, giving the administrator legal authority to administer the estate and distribute the deceased’s estate.

The Role of an Administrator in an Intestate Estate

An administrator plays a crucial role in administering an intestate estate. When someone dies intestate in New South Wales, the appointed administrator is responsible for ensuring the estate is administered according to law.

Responsibilities of an Administrator:

1. Collecting Assets: The administrator must identify and collect all assets of the deceased’s estate, including bank accounts, real estate, personal effects, and other property.
2. Paying Debts and Liabilities: Before distributing the estate, the administrator must pay any outstanding debts and liabilities, including the deceased’s person debts (including tax debts) and testamentary and administration expenses such as funeral and burial expenses, the estate’s tax liabilities, court costs, and legal costs.
3. Distributing the Estate: Once all the deceased’s and estate’s liabilities have been paid, the assets can be distributed in accordance with the prescribed order of entitlement set out in Chapter 4 of the Succession Act 2006 (NSW). Depending on the circumstances and family matrix, this may include the spouse or partner, de facto spouse, children, parents, siblings, or more distant relatives. Different entitlements apply in blended families where there is a spouse and children from another relationship.
4. Legal Compliance: The administrator must ensure they comply with the relevant laws, keep accurate records and where necessary, file records with the court.

Managing Jointly Owned Property When Dying Intestate

When a person dies intestate, owning property with someone else, the method of ownership will determine how it is passed on. The key points include:

• Joint Tenancy: Property owned by the deceased and another person as joint tenants will not pass according to the intestacy laws but instead will pass to the surviving joint tenant automatically under the rule of survivorship. A grant of letters of administration is not required for this to occur. This is commonly seen in first marriages where the spouses own the marital home together and where the intention is for the surviving spouse to inherit the property.
• Tenancy in Common: Where the deceased owned property as tenants in common with another person, the deceased’s share will fall into their estate and pass under the terms of their will or according to the rules of intestacy. This will require a grant of letters of administration.

Ensure Proper Estate Management with Expert Legal Assistance

Administering an intestate estate can be complex, especially when the estate is large or complex. Ensure your loved one’s assets are distributed according to law by seeking expert advice from Empower Wills and Estate Lawyers.

If you need help to distribute the assets, or believe you may be entitled to a share of an intestate estate, or believe someone may be entitled to your estate but don’t want them to receive anything, contact us today at 1300 414 844 to discuss your situation and receive personalised guidance from our experienced team. Secure peace of mind and ensure the estate is handled correctly. We assist clients in all states and territories, including New South Wales, Queensland, Victoria, and Tasmania.

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Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.