Mid Mountains Legal Blog

Dying without a Will in NSW

Anthony Steel

Dying without a Will is known as dying intestate. This far from ideal situation is unfortunately quite common. If your loved one has passed away without a Will, you won’t have any formal instructions to help you determine how to distribute their estate.

What circumstances usually lead to a person dying without a Will?

Inaction is the most common reason for people dying intestate, including:-

  1. thinking that they don’t have sufficient assets to justify making a Will;
  2. being unable to decide what to do in the Will so doing nothing;
  3. intending to make a Will but never getting around to it, and
  4. reluctance to discuss death.

An intestacy may be caused by:-

  1. the Will-maker losing the original Will;
  2. a Will signed by a person who lacked the capacity to understand what they were doing;
  3. inadvertently revoking a Will (e.g.by a subsequent marriage); or
  4. failing to prepare a Will properly. (e.g. not signing it or not having it correctly witnessed).

Intestacy law: What happens to an intestate estate?

The administration of an intestate estate requires someone to take responsibility to see it through (because no executor has been appointed in a Will to apply for a grant of probate).

An application must be made that the court appoint an administrator of the estate (an application for a grant of letters of administration on intestacy). An application for a grant of letters of administration may be required where there:

  1. is no Will; or
  2. is a Will, but all of the nominated executors are unable to act (e.g. because they have died, or refuse to act, or have lost capacity). The Will remains valid but an administrator must be appointed to administer the estate.

When it is necessary to apply for a grant of letters of administration, usually the person with the greatest entitlement to the estate applies for the grant. For example, if the deceased is survived by children (and no spouse) then one or more of them could apply. If a spouse or partner survives the deceased, they would usually bring the application.

When multiple people all think they should be appointed as administrator, this dispute will have to be sorted out before the administration of the estate can commence.

What’s the difference between a grant of probate and letters of administration?

An application for a grant of probate is made to the court by an executor appointed by a Will. The grant of probate confirms that the Will is valid and that the executor is authorised to deal with the estate’s assets.

An application for a grant of letters of administration is usually made where there is no Will and consequently no appointed executor. A beneficiary of the intestate estate will apply to be authorised to administer the estate.

How is an intestate estate distributed when there is no Will?

The distribution of an intestate estate is predetermined by a statutory formula. This formula sets out who benefits from the estate and in what proportions (that is, the order of priority).

A distribution determined in this way can create significant problems. For example, part of the estate might pass to a relative who had little or nothing to do with the deceased, or a surviving spouse may end up having to share a substantial part of the estate with children or stepchildren. This is why dying without a Will can be problematic, as your estate may not be distributed to the ones most important to you.

What happens if I die without a Will?

If you pass away without a valid Will, a loved one or your next of kin will need to apply for a grant of letters of administration authorising them to administer your estate in accordance with the applicable formula. This can be a complex process at an already stressful and difficult time.

Are there any disadvantages to the intestacy process?

Dying without a Will creates uncertainty and is more likely to result in a dispute. It can cause delay and additional expense if those left behind argue about whether or not the intestate distribution adequately provides for those people closest to the deceased or who should be appointed as the administrator.

Where to now?

If you or someone you know is dealing with a deceased estate, contact us for advice and assistance.

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