What happens if I die without a will in NSW

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.

Who inherits the deceased’s estate, and how much do they get?

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
• Taxes
• 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:

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.

• Who qualifies as a spouse or partner?

  A spouse, for these purposes, might be a spouse, a de-facto partner or a domestic partner. If there is more than one of these, then there may be more than one spouse.

  • Spouse. “A person who was married to the deceased immediately before the death or who was a party to a domestic partnership immediately before the death. This does not include ex-spouses.”
  • Domestic partner. This is a partner of two years or more, where the relationship has resulted in the birth of a child.
  • De-facto partner. A de-facto partner is determined individually and is based on the duration of the relationship, whether there was a shared address or property and whether there was a mutual commitment.

• Who qualifies as a child and how are shares divided among children and siblings?

  • Adoption. Legally adopted children are considered children of the parents, as normal.
  • Artificial insemination, IVF and surrogacy. These children are considered to be the children of the parents who raise them.
  • Minors. The share of a minor (under 18) is not deferred to them until they reach the age of 18, or they marry.
  • Deceased children. Any children who passed away at any time, and would have been entitled to a share, have their share split among all surviving siblings.
  • Unborn children. To be eligible for a share, a child must have been born or have been in utero before the intestate’s death.
  • Step-siblings. Stepsiblings are considered the same as siblings born to both parents.

• What happens if there is a spouse and children, but the children are not the spouse’s?

  If there are children from the deceased’s previous marriage as well as an eligible spouse, the spouse is entitled to the following:

  • The intestate’s personal effects
  • A statutory legacy of up to $350,000 plus adjustment for CPI from December 2005
  • Half of the remainder of the estate

  After this, the rest of the assets go to the children.

• What happens if there is more than one spouse?

  If there is one spouse to which the deceased was legally married as well as someone else who meets the definition of a domestic or de-facto relationship, the following rules apply:

  • If both spouses have children, and either none are the deceased’s or all are the deceased’s children: Both spouses share the personal effects, statutory legacy and estate (as laid out above) equally.
  • If there are no children: The estate is divided between the spouses, either as agreed, in agreement with a court order or evenly if none of the previous applies.
  • If one of the spouses has children of the deceased: Children of the deceased are entitled to a share along with the spouses.

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.

There’s no will. What happens now?

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.

• Who can get a grant of administration?

  Generally, the only people who can get a grant of administration are those who have good reason to get one, such as a lawyer hired by an inheritor or someone in line to get a portion of the estate.

  Applications need to include detailed information about the estate, and the administrator will have to do a lot of groundwork before they can get access to the deceased’s property in order to distribute it.

• I need to distribute an intestate estate. Should I use a lawyer or do it myself?

  It might be a tempting idea not to use a lawyer because their fees will come out of the intestate assets. However, you should consider how confident you are applying for a grant, doing a lot of paperwork, accessing records and doing a thorough check for all eligible inheritors.

  Note that fees will be involved even if you choose not to retain a lawyer, which will be lost should your application be incorrect or unsuccessful. Intestate proceedings are relatively routine for estate lawyers and should generally not incur substantial expense unless there are problems (such as someone contesting the division of assets). Generally, if there are enough intestate assets to warrant getting a grant of administration, one might assume there are enough to cover routine legal expenses.

How to apply for a grant of administration in NSW

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.