Find out what happens in New South Wales if there's no set will or testament.
If someone dies without leaving a will, or if their will leaves some possessions unaccounted for, then intestacy has happened. Intestacy laws are different in each state and are all about laying out a clear formula for who gets what, who’s responsible for making sure it happens and what needs to be done.
This guide explains intestacy in NSW and what happens if someone dies without a will. Note that the following is a general guide only, and it’s a good idea to consult a professional for help managing intestacy.
The first people who get taken care of, both by a will and by intestate assets, are creditors. All debts need to be repaid including the following:
- Funeral expenses
- Debts to any financial institutions or other lenders
- Any outstanding administrative or legal expenses
After this, any assets specified in a will are distributed as requested. Anything not mentioned in a will is then distributed according to the intestate laws.
The intestate order of inheritance in NSW
The general order of inheritance is as follows:
- Children and grandchildren
- Aunts and uncles
- The state
It typically runs down the line until an eligible inheritor is found, at which point the estate is divided evenly among everyone at that level. Anyone who does not survive the deceased by at least 30 days is not considered to be an inheritor.
In general, if there’s a spouse, then they will get the entire estate except in two situations:
- The deceased had children, but not with the spouse.
- There is more than one spouse.
- The deceased owned property as a joint tenant with someone else.
If the intestate-owned property is owned with someone else as a joint tenant, then that person gets the entire property no matter what, regardless of what the will or intestacy rules say.
Note that spouse refers not only to marriage, but also to eligible domestic relationships and de-facto partners. If the deceased did not legally divorce someone and then passed away while in a new domestic relationship, there might be more than one spouse.
If the property ends up with the state, it may distribute the assets to others who might have a valid claim to them or retain them.
In order to properly distribute assets, someone needs to be appointed as an estate administrator. This person is then responsible for making sure the estate is distributed correctly in line with the rules set out above.
Before they can start, this estate administrator will need to apply for a grant of administration from the courts. This is essentially a notice which lets them withdraw the deceased’s funds from banks, pay back creditors on their behalf and otherwise manage the finances as needed.
Note that a grant of administration will not always be needed.
- If there aren’t a lot of intestate assets and there’s a clear path of inheritance such as a single spouse, then a grant of administration may not be needed.
- If there aren’t a lot of intestate assets and all those involved can agree on how to distribute them, then a grant of administration may not be needed.
- Conduct a thorough search for a will. You will need to take a thorough look through the deceased’s personal papers, consult the state supreme court (where wills may be lodged), consult any solicitors the deceased may have engaged, check with any banks where they held accounts and contact the state government trustee association.
- Get certificates. You will need to get a death certificate, and you may also need certification of your relationship to the deceased in order to succeed in your application.
- Lay out who is entitled to what. Your application needs to specify who is entitled to a share of assets under intestate law. Generally, everyone mentioned here may be entitled to apply for a letter of administration and they can agree between themselves who should apply for a grant.
- Advertise your intention to apply and then wait. You now need to advertise your intention to apply for a grant of administration on the state registry. You will then need to wait at least two weeks. This is so other people with an interest in the estate, like creditors, other eligible relatives or someone who might know of the existence of a will, can have a chance to get involved.
- File the paperwork. Once you’ve completed all the above steps, you can actually file an application for a letter of administration. The things you need to include in an application and the forms to fill out may vary depending on the situation.