If you die without a Will then you die intestate. It is often assumed that if you die intestate your estate passing to the State (Crown). This is not correct. In NSW the Succession Act 2006 sets out what is to happen if you die without a Will. Your estate will only pass to the State where you have no eligible relatives. It is important that there is a thorough search to locate a Will. This includes checking with any solicitors the deceased has engaged, checking the deceased’s bank and checking in with the NSW Trustee and Guardian to see whether they hold a Will or any documents setting out the deceased’s testamentary intentions.
Once an exhaustive search has been made and no Will has been found, then it will be presumed the deceased died intestate and if necessary, an Application for Letters of Administration be made.
Applying for a Grant of Letters of Administration
If there is property owned other than as a joint tenant (that is owed solely by the deceased or as tenants in common) or there are assets such as shares, then an Application needs to be made for Letters of Administration by one of the eligible relatives. If the estate comprises only of a few assets of small value then it may not be necessary to apply for Letters of Administration if the assets holders (companies in which shares are held or banks etc.) dispense with the requirement for Letters of Administration. Before obtaining Letters of Administration where the assets are only of some value, discussion should be had with the assets holders as to their requirements.
We note that if the deceased owned property as a joint tenant then the property automatically passes to the surviving tenant regardless of whether or not there is a Will and the joint property is not included as part of the deceased’s estate.
Who is an Eligible Relative
Under the Succession Act the following persons are eligible relatives:
- Spouse, including de-facto spouse
- Brothers and sisters
- Aunts and uncles
Statutory Order of Eligible Relatives (Intestacy Rules)
Where there is a spouse:
If the deceased died leaving a spouse and no children then the spouse is entitled to the whole of the estate. A spouse is defined as a person married to the deceased immediately before the death or someone who the deceased was in a domestic partnership with immediately before the death. A domestic partnership involves a registered relationship under The Relationships Register Act or a de-facto relationship which has been in existence for a continuous period of at least two years or has resulted in the birth of a child. A de-facto relationship includes a same sex relationship.
If the deceased dies leaving a spouse and children and the children are the spouses’ children, the spouse is entitled to the whole of the estate. If the deceased died leaving a spouse and children but the children are not the spouses’ children then the spouse is entitled to:
- The testates personal effects.
- $350,000.00 with a CPI adjustment.
- One half of the remainder of the estate.
There are special provisions that apply where there are more than one spouse.
Where there is no spouse but there are children or grandchildren:
If the deceased leaves no spouse but leaves children, the deceased’s children share the whole estate equally.
If the deceased leaves children who are children of the surviving spouse then these children will not inherit any part of the deceased’s estate as the estate will pass to the spouse.
If the deceased leaves a spouse and children who are not children of the surviving spouse, then the deceased’s children are entitled to any amount remaining after satisfying the spouses’ entitlement to be shared equally.
If a child of the deceased dies before the deceased and has surviving children, those children take the deceased’s child’s share equally. If the deceased child had no children then their share is divided among the deceased’s other children.
An underage child includes an adopted child.
Where the deceased leaves no spouse and no children but has parents that are alive, the parents get equal shares of the estate. When one parent is alive, the whole estate goes to that parent.
Where the deceased leaves no spouse, child or parent then their brothers and sisters share the whole estate equally. Brothers and sisters includes half-brothers and half-sisters (i.e. that is they have one parent in common). If the deceased has a brother or sister who died before them leaving a child or children who survived the disease then the child or children (the deceased’s nieces and nephews) take a share of the deceased’s estate).
If the deceased leaves no spouse, child, parent, brother or sister or nieces or nephews then the grandparents of the deceased share the estate equally.
If the intestate leaves no spouse, child, parent, brother or sister, nieces of nephews or grandparents then the brothers and sisters of the deceased (aunts and uncle) are entitled to the whole estate equally. If an ant or uncle dies before the deceased leaving a surviving child (a cousin of the deceased) then the cousin will share equally the deceased’s aunt or uncles share of the estate. This only extends to first cousins (that is if the first cousin dies before the deceased then the first cousin’s children (second cousin of the deceased) do not inherit).
If the deceased dies without any of the above, then the State is entitled to the whole of the estate. The State does have digression to provide for any dependents of the deceased or any other person the deceased might reasonably had expected to provide for had he or she had made a Will.
Applying for a Grant of Letters of Administration
An application is made to the Supreme Court for letters of administration. Where there is a spouse, the application is made by the spouse. Where there is no spouse, the application is made by an eligible relative (child, parent, brother, sister) an eligible person who will inherit the estate. The steps to obtain Letters of Administration are similar to those required for a grant of probate. It requires prescribed forms to be filed with the Court.
Segelov Taylor can assist you to obtain Letters of Administration. We will provide you with advice as to whether Letters of Administration are required and as to who will inherit the estate.
Professional costs in obtaining Letters of Administration are regulated by the Legal Profession Uniform Application Act 2004 which calculates the professional costs according to the gross value of the estate’s assets. In addition to professional costs, there are other fees incurred such as the filing fee for the Letters of Administration. Segelov Taylor will provide to you full disclosure of the costs before commencing an application for Letters of Administration.