When someone dies without leaving a Will (called “intestate”) in New South Wales, their assets are distributed according to the rules set out in the Succession Act 2006 (NSW). The Supreme Court of NSW can allow notional estate claims to recover assets that the deceased gave away before their death or held in joint tenancy.

A significant number of people die intestate in NSW. The unfortunate result of not doing a Will is that grieving family members are left with the more difficult responsibility of administering an intestate estate. The absence of a legal record of the deceased’s wishes increases the likelihood of disputes between family members with conflicting views as to the deceased’s wishes for the disposition of their estate.

Partially intestate estates

If a testator does not update their Will following significant events in their lives, it may not dispose of every asset of the estate, creating a partial intestacy. Even a Will is drafted to provide for future changes, the testator should periodically review and, if required, update their Will to avoid the estate being partially intestate. A Will should be reviewed to ensure that it remains valid and updated at every major life milestone, including births, marriages, buying or selling real property, and the death of an executor or a beneficiary.

Marriage partly revokes a testator’s Will, unless the Will states that it was written with the marriage in mind. The only clauses that survive are those relating to the appointment of the spouse as executor or trustee, and any gifts for the spouse. This excludes other beneficiaries from receiving their bequests unless they are also entitled to inherit under intestacy laws. In practice, this eliminates any gifts to friends or distant family and charitable donations.

If a testator divorces their spouse, this also impacts on the validity of their Will, unless it is drafted to specifically state otherwise. Divorce revokes a spouse’s appointment to a position of responsibility in the administration of the estate and any distribution to the spouse.

Administration of intestate deceased estate

An application for Letters of Administration must be made to the Supreme Court of NSW within 6 months after the death of the deceased. The Court may accept an application after the 6 months has expired if the applicant convinces the court in an affidavit that there is a reasonable explanation for the delay.

Only those entitled to inherit from an intestate estate are eligible to apply. The Supreme Court often makes a grant to the deceased’s next of kin (such as their de facto partner or spouse). Several eligible people can apply jointly, or one person can apply and attach an affidavit of consent from all other eligible parties. If no close relatives apply, the court can issue a grant of Letters of Administration to anyone they deem appropriate (such as the NSW Trustee & Guardian).

Laws of succession and intestacy

Letters of Administration authorise an applicant to administer an intestate estate according to the succession rules outlined in the Succession Act 2006 (NSW). The order of succession for an intestate estate depends on the familial circumstances of the deceased, but generally the next of kin inherits.

If the deceased was legally married or in a domestic or de facto relationship when they died, then only the spouse inherits the estate.

Children of the spouse and the deceased do not inherit from an intestate estate, but children born from another relationship are entitled to a share of the estate. When the deceased had children not related to the current spouse, the spouse inherits the deceased’s personal belongings, a statutory legacy based on the Consumer Price Index, and half of the residual estate. Children unrelated to the surviving spouse inherit the other half of the remaining assets.

If the deceased did not have a spouse when they died, then any children inherit the intestate estate.

If the deceased had neither children nor a spouse, then the order of succession moves on to the deceased’s parents, then the deceased’s siblings, nieces and nephews, grandparents, uncles and aunts, and lastly cousins. In the event that no such relatives can be located, then the intestate estate is transferred to the state.

Categories of spouse and issue

The category of ‘spouse’ is broadly defined, including anyone who was married to the deceased, or in a registered or de facto relationship or domestic partnership with the deceased.

An estranged spouse who, on the deceased’s death, was separated from them but not yet divorced is nonetheless entitled to inherit the spousal portion of the estate.

To prove their entitlement to inherit from an intestate estate, a de facto partner must satisfy the court that the relationship has lasted for two years or that the couple conceived a child.

To determine whether an applicant and the deceased were in a domestic relationship, the court considers a wide variety of factors including the duration of the relationship and the degree to which their lives are intertwined.

The other category of prospective beneficiary from an intestate estate is the deceased’s “issue”. Issue include the deceased’s biological offspring, whether their parents are married or not, and children the deceased legally adopted before they died.

Here to Help

Contact us if you have any questions about the intestate estate of a loved one or about your own Will.