Intestacy and letters of administration
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?
What happens in intestacies?
| 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:
|
| 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. |
How to deal with intestacies?
Letters of administration
What are letters of administration?
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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Wills and estates disputes
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