In addition to the proceedings such as family provision claims, claims alleging the will is not valid, etc, Segelov Taylor are able to assist in other will disputes including:

  • Intestacy
  • Letters of Administration.

Wills and estates litigation can be costly, drawn out and frustrating.  Great care should be taken not to waste money (or deplete the estate) and to not make what is often a bad situation worse.

Intestacy

What is intestacy?

Intestacy is when someone has died without a will or has left a will but has not effectively allocated all or part of their property in their will. When `The person has died “intestate”.

What happens in intestacies?

There is legislation in each State and territory that outlines the order of entitlement as to who inherits and in what proportions.  While the legislation differs between states, it is in broadly similar terms with a hierarchy of relationships. 

New South Wales Legislation- Succession Act 2006 (NSW) 

The estate available for distribution is all the property left over after the payment of funeral and administration expenses, debts, tax, and any other liabilities that are required to be paid (Succession Act 2006 (NSW), s 103).   

The order is as follows:  

Where the deceased leaves…  Who is entitled and to what 
A spouse and child/ren from the relationship  The spouse is entitled to the whole of the estate. 
A spouse and child/ren from a previous relationship  The spouse is entitled to receive:  

  • The personal property of the deceased,  
  • A statutory legacy adjusted to CPI (the current amount is about $440,000), 
  • Half of everything leftover, 
  • The right to elect to acquire property from the estate. 

The children are entitled to equal shares of the other half of the remainder of the estate. 

More than one spouse  The spouses are entitled to equal shares of the estate. 
Children only  The children are entitled to equal shares of the whole estate. 
No spouse or children  The deceased person’s parents are entitled to equal shares of the whole estate. 
No spouse, children, or parents   The deceased person’s full and half siblings are entitled to equal shares of the whole estate. If the deceased person’s siblings have died leaving children, then the deceased person’s nieces and nephews are entitled to their parents share. 
No spouse, children, parents or siblings  The deceased person’s grandparents are entitled to equal shares of the whole estate. 
No spouse, children, parents, siblings or grandparents   The deceased person’s full and half aunts and uncles are entitled to equal shares of the whole of the estate. 
No spouse, children, parents, siblings, grandparents, aunts, or uncles  The deceased person’s first cousins are entitled to share equally in the share that their parents would have been entitled to, had they been alive. 
No spouse, children, parents, siblings, grandparents, aunts, uncles, or cousins  The State government is entitled to the whole of the estate.  

 

A spouse is a person who was married to the intestate immediately before the intestate’s death or who was in a domestic partnership (this includes a de facto partner or civil partner) with the intestate immediately before the intestate’s death. 

Children include adopted children, ex-nuptial children, illegitimate and children conceived by surrogates but does not include stepchildren. If the deceased’s child had already died but had children (grandchildren of the deceased), the grandchildren are entitled to their parent’s share.  

There is a survivorship requirement. Entitlements can only be granted after 30 days after the death of the intestate(Succession Act 2006 (NSW), s 107).  The distribution of an intestate’s estate is not affected by gifts given by the intestate to a person during the intestate’s lifetime (Succession Act 2006 (NSW), s 140).  

 

Other State’s legislation: 

QLD: Succession Act 1981 (QLD) 

VIC: Wills Act 1997 (Vic) 

SA: Wills Act 1936 (SA) 

WA: Wills Act 1970 (WA) 

TAS: Wills Act 2008 (Tas) 

NT: Wills Act 2000 (NT)  

ACT: Wills Act 1968 (ACT) 

How to deal with intestacies?

In the case of intestacy, there is no named executor. Where a persons is intestate, the next of kin, usually a spouse or the person who will receive most of the estate, will generally apply for letters of administration to be named the estate’s administrator 

Letters of administration

What are letters of administration?

Letters of administration are court orders that allow an estate to be administered when there is no will or when there has been no appointment of an executor. The time frame to apply for letters of administration is six months from the deceased’s date of death (Supreme Court Rules 1970, Part 78 rule 16).  

What are the next steps?

1. Search for the will  

The Supreme Court will need to be convinced that the deceased did not leave a will or another document that outlined the deceased’s intention to distribute the estate. A thorough search must be carried out to find the will. Places to search include the deceased’s home or last place of residence and amongst the deceased’s personal papers and belongings. If the will has not been found in the personal possessions of the deceased, then further inquiries must be undertaken, such as enquiring at: 

  • The NSW Trustee & Guardian;  
  • The Supreme Court of NSW;
    Any banks that the deceased held account at;  
  • Any solicitors that the deceased may have engaged. 

You will be required to create a list of where you have searched in the Affidavit of Applicant.  

 

2. Obtain a death certificate  

If the deceased died in NSW, you need to apply for a death certificate from the Registry of Births, Deaths and Marriages.  

3. Determine who is entitled under intestacy and who should apply  

An eligible relative can apply for Letters of Administration. The eligible relative is typically the spouse or child of the deceased. If more than one person is entitled to apply, those persons should agree to apply jointly, or one or some of them should apply with the consent of the other(s).  

4. Advertise notice of intention to apply for a grant of Letters of Administration

Before applying for Letters of Administration, you must publish an online notice of your intention to apply on the NSW Online Registry. Once you have published your intention online, you must wait at least 14 days from the publication date before filing your summons for Letters of Administration.  

5. Complete and file the forms 

For Letters of Administration the following documents need to be filed at the Supreme Court (in addition to those required for Probate):  

  • an affidavit stating that the deceased was not living in a de facto relationship unless the de facto spouse is making the application (which can include a same-sex partner) in which case a detailed affidavit is required confirming the applicant is a de facto spouse; 
  • an affidavit of applicant for administration; 
  • an administration bond, if required.  

A registrar will determine uncontested applications for Letters of Administration, and there will be no hearing in court.  

Once the Supreme Court has granted the letters of administration, the administrator will be allowed to manage and distribute the deceased’s assets.  

It is advisable to seek legal advice before commencing an application to apply for a grant of Letters of Administration. Segelov Taylor Lawyers are experienced lawyers in this area and can help you through the complex process.  

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