Dying Without a Will in New South Wales

21 February 2022 in Wills and Estates Law

Dying without a will is known as dying intestate.  In NSW the Succession Act 2006 (NSW) outlines the rules which apply when someone dies intestate.  Important issues to consider when dealing with a person who has died without a will are outlined below.

Letters of Administration

Where a person dies intestate, an appropriate person will need to apply to the court for ‘Letters of Administration’.  A ‘Letters of Administration’ is similar to a grant of probate, it basically authorises a person to administer the estate of a person who has died intestate.

Liabilities and Funeral Costs

Where a person has died intestate, their funeral costs and other outstanding liabilities must be paid out of the deceased’s estate before the estate can be distributed (section 103 of the Succession Act 2006 (NSW)).

Distribution of the Estate

If a person has died intestate, their assets are distributed in accordance with the order defined in Chapter 4 of the Succession Act 2006 (NSW).  In broad terms, the order prioritises the distribution of assets to the current spouse and children of the deceased.  Distribution becomes more complicated where the deceased has children from previous relationships.  It should be noted that a de facto partner of the deceased may also come within the definition of a spouse depending on the circumstances of the relationship.  It should also be noted that adopted children of the deceased have the same rights as biological children of the deceased.

Where the estate cannot be distributed amongst the deceased’s spouse and children it will be appropriately distributed across the deceased’s remaining relatives.  The order of priority when distributing assets in these circumstances is as follows:

1. The deceased’s parents
2. The deceased’s siblings
3. The deceased’s nieces and nephews
4. The deceased’s grandparents
5. The deceased’s aunts and uncles
6. The deceased’s first cousins

Where the deceased has no appropriate relatives to distribute the estate it will be inherited by the state.

Indigenous Australians

There are special provisions with the Succession Act 2006 (NSW) which apply to the distribution of the estate of indigenous Australians that die intestate.  These provisions provide for eligible people to apply for a distribution order which facilitates the distribution of the estate in a manner which is consistent with the laws, customs, traditions and practices and indigenous community or group to the the intestate belonged to.  Generally, these applications must be made within 12 months of the grant of administration.  Distribution orders relating to indigenous Australians who die intestate function to the exclusion of the rules of the other rules of intestacy provided by the Succession Act 2006 (NSW).

The Importance of Having a Will

The fundamental problem of dying intestate, is that the deceased is unable to have their estate distributed in the manner they want it to.  This is not an issue for people who die with a valid will.  If you wish to have your estate distributed in accordance with your wishes it is important to see a wills and estates lawyer who will be able to create a legally binding will.  The lawyers at Brander Smith McKnight listen carefully to your instructions, meticulously draft your will, allowing you to review  the will prior to signing.  We have a fixed, competitively priced fee and don’t use conveyancers.  We only have experienced lawyers writing your will.

We are conveniently located in Sutherland, Parramatta, Wollongong and Sydney CBD.