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What Happens if Someone Dies Without a Will?

The best way to ensure that an estate is distributed in accordance with a person’s wishes is to prepare a Will and ensure that family know where it is kept.

However, sometimes people die without family or friends knowing if they left a Will.  This can create difficulties and issues for those left behind.

If someone close to you has died and you are unsure if they left a Will, there will need to be a thorough search to determine if there was a valid Will, or if there are any other documents evidencing their testamentary intent.  You can read about how to search for a Will here.

If after this search there is still no Will, it will likely be presumed that the deceased died intestate, meaning they died without a Will. In that case, the provisions of the Succession Act (NSW) 2006 will determine who inherits and how much. This establishes that generally:

  • If the deceased left a spouse and no children, the spouse is entitled to the whole estate.
  • If the deceased left a spouse and children, and the children are the spouse’s children, the spouse is entitled to the whole estate.
  • If the deceased left a spouse and children, but the children are not the spouse’s children, the spouse is entitled to:
    • The intestate’s personal effects and;
    • A statutory legacy of $478,291.00 (this amount changes depending on when the person died. This figure is correct for deaths in the last quarter of 2018)
    • One-half of the remainder (if any) of the estate
  • If the deceased left no spouse or child, then the order of inheritance becomes: their parents, their brothers or sisters, their grandparents, their aunts or uncles, their first cousins.
  • Only where the deceased died without any eligible relatives, will their estate potentially pass to the State.

It is important to know that if the deceased owned property as a joint tenant, the property passes automatically to the surviving tenant and this joint property does not form part of the deceased’s estate.

Further, the Act provides that “more than one” spouse may stand to inherent – if the deceased was not divorced but separated and also in a de facto relationship both partners will be eligible beneficiaries of the deceased’s estate.

What do I do if my friend or family member dies without a Will?

Where the deceased had no valid will, you will likely need to apply for a grant of Letters of Administration, a legal order that will permit you to manage and distribute the estate of the deceased in accordance with the provisions of the Succession Act.

However, only certain people, generally only those who are entitled to a share of the estate, are able to apply for a grant of Letters of Administration. This is limited to:

  • A Spouse (includes any de facto and registered relationship)
  • Children (including the children of any predeceased children)
  • Parents
  • Brothers and sisters (including the children of any predeceased brother or sister; this includes half-siblings but it does not include step-brothers or step-sisters)
  • Grandparents
  • Aunts and uncles (including the children of any predeceased aunts or uncles)

If there is no next of kin or none that are appropriate or willing to apply for the grant, then the Court may grant administration to the NSW Trustee & Guardian, or any other person the court thinks fit.

It is important to start this process promptly as seeking a Grant of Letters of Administration after six months from the deceased’s death will involve additional requirements. An application is made through the Supreme Court and requires the applicant to provide documentation of the personal and financial affairs of the deceased. This may include:

  • Summons for Letters of Administration
  • Draft Grant for Letters of Administration
  • Affidavit of the Applicant for Administration
  • Inventory of Property
  • Death Certificate

Should you need assistance on how to compile these documents or advice on what to do if a friend or family member dies intestate, please contact us.

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