What can you do if your loved one died intestate?

A will is a legal document which outlines the testators’ instructions in the event of their death. It details their wishes about:

• The distribution of the deceased’s assets

• Who would receive specific personal and heirloom items

• Any religious or cultural arrangements for the funeral

• Who would be nominated as executors for ensuring the testator’s wishes are carried out

However, there are people who died without a will. This is referred to as dying intestate. When this happens, the relatives of the deceased can apply for ‘Letters of Administration’ to administer the estate of the deceased.

Who can apply for administration of an intestate estate?

‘Letter of Administration’ is a court order made by the Supreme Court of NSW which allows the administrator to distribute the assets of the deceased who died without a valid will.

The Court usually grants administration of an intestate estate to the person with the greatest entitlement according to the Succession Act 2006. This includes spouse, children, parents, siblings, grandparents etc.

What are the roles of the appointed administrator?

Upon the Grant of Letters of Administration, all assets of the deceased vest in the Administrator. [1]

As administrator, you’ll need to:

• Notify the deceased’s relatives and friends about the death and inform them about your role in administering the deceased’s estate.

• Notify the organisations that the deceased may have accounts with or received money from. [2]

• Call in the deceased’s assets. To register the transfer of asset from the deceased to the administrator, you would need to provide a copy of Letters of Administration, Death Certificate and various other forms as required by the asset holder.

• Identify any bills or debts owed by the deceased and use estate funds to pay them.

• File an income tax return on the estate’s behalf for any income-generating assets, such as bank or investment accounts.

• Distribute assets according to the Succession Act 2006.

Spouse’ entitlement under the Succession Act 2006

Where the deceased leaves a spouse only or any child/ren from the relationship, the spouse is entitled to the whole of the estate. [3]

Where the deceased leaves a spouse and children from a previous relationship, the spouse is entitled to receive the personal effects (property) of the deceased, a statutory legacy of approximately $490,000 and half of the remainder of the estate.[4] All of the deceased’s children, including children from previous relationships and from the current spouse, are entitled to equal share of the other half of the estate.

Where the deceased leaves more than one spouse but no children, the spouses are entitled to the whole of the estate.[5] This situation may arise if the deceased was married and had a de facto spouse or more than one de facto spouse. The distribution between the spouses can be determined by either a written agreement, an order of the Court or in equal share.[6]

What about the deceased’s children?

If the deceased leaves no spouse but leaves children, the children are entitled to equal shares of the whole of the estate.[7] This includes biological and adopted children, but not stepchildren. This situation may arise if the deceased was divorced and not in any de facto relationship at the time of the death.

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[1] Probate and Administration Act 1989 (NSW) s 44.

[2] A checklist of organisations to contact with is provided here: https://www.lawaccess.nsw.gov.au/Pages/representing/after_someone_dies/forms/checklist_who_to_notify_after_someone_dies.aspx

[3] Succession Act 2006, ss 111-12.

[4] Ibid, s 113.

[5] Ibid, s 122

[6] Ibid, s 125.

[7] Ibid, s 127.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*