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How to Get Inheritance (NSW)

Inheritance refers to the property or money a person receives from another person when the other person dies. A beneficiary in New South Wales might inherit property from a deceased estate because of the terms of a will or through contesting a will, or because of entitlement under intestacy law due to their relationship with the deceased. This article outlines how to get inheritance in NSW via a will or under intestacy law.

How To Get An Inheritance From A Will In NSW

When someone is the beneficiary of a testator’s will, he or she will usually have to wait a considerable time to receive their inheritance. In NSW, an executor may take up to twelve months to distribute the assets of the estate, though a beneficiary may receive their inheritance before this date or after this date, depending on the specific circumstances of the estate. Sometimes an estate is very simple, and an executor will decide to make an early distribution because there is, for instance, only one beneficiary of the estate. However, a beneficiary cannot require an executor to distribute a bequest before the estate has been properly and fully administered.

In fact, an executor is obligated to wait for at least six months to distribute bequests in case there is a family provision or creditor claim against the estate. There may also be ongoing litigation or other circumstances that prevent the executor from resolving the estate in a timely manner. In those cases, it would be very unwise for the executor to allow the distribution, as he or she may be legally liable if the court later orders a distribution to a different beneficiary. A beneficiary can take some comfort in the fact that if a legacy is not paid within the year following the testator’s death, the beneficiary can usually claim interest on their withheld inheritance.

How To Get An Inheritance By Contesting A Will

Sometimes, a family member or dependent of the deceased will feel that they were unfairly excluded or not adequately provided for in the testator’s will. In this situation, an eligible person can make a Family Provision Claim against the deceased estate in order to get a fair inheritance.

Those who are entitled to contest a will in order to get an inheritance include the deceased’s spouse and de facto partner, child, former spouse and someone in a close personal relationship with the deceased. Additionally, a grandchild and member of the household of the deceased are eligible to make a claim if they can prove that they were dependent on the deceased.

The first step to obtaining an inheritance in this circumstance is to contact the executor of the estate and ask that they recognise your claim to inherit. A solicitor can assist the claimant to negotiate with the executor to settle without recourse to a court proceeding. Otherwise, the claimant must make a formal application to the Supreme Court of NSW for an official judgment on the claimant’s right to inherit.

The court will assess a Family Provision Claim against a number of factors, including the nature and history of the relationship between the deceased and the claimant, the moral obligation of the deceased to provide for the applicant, and the applicant’s financial circumstances and current and future financial needs.

How To Get Inheritance From An Intestate Estate

When someone dies without making a will, the deceased’s family can still get their inheritance if they are entitled under state law. Under the Succession Act 2006, any spouse or de facto partner is the principal beneficiary of an intestate estate, and a deceased’s children only benefit if they are from a relationship other than with the current spouse. If a deceased died without a current spouse, the people who are eligible to get an inheritance from an intestate estate are, in the following order, the children, parents, siblings, grandparents, uncles and aunts and cousins of the deceased.

The way that a person receives an inheritance depends on the preferences of the executor and the nature of the assets. For instance, an executor who is also the chief beneficiary of the estate will probably choose to transfer funds directly to their own account as this is the simplest way to finalise the bequest. A distribution from a solicitor’s trust account, on the other hand, will probably be in the form of a trust account cheque.

If a close family member dies without a will, you should ensure that you seek advice about whether you are entitled to inherit from the intestate estate. The Contested Wills Team at Armstrong Legal can advise you on how to get an inheritance in NSW, whether you are currently a beneficiary, want to contest a will or establish your right to inherit from an intestate estate. Please contact our specialist team today on 1300 038 223 for legal advice or representation.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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