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Intestate Estates (NSW)

A person who dies without leaving a will is described as “intestate”. When someone dies intestate in New South Wales, their assets are not bequeathed in line with the wishes outlined in a will, but according to the succession rules contained in the Succession Act 2006. NSW is also unique in Australia, in that the Supreme Court can allow notional estate claims to recover assets that were held in joint tenancy or given away by the deceased before their death. This article explores the consequence of dying intestate, with particular focus on who inherits from an intestate estate in New South Wales.

Intestate In NSW

It is perhaps unsurprising that a significant number of people in NSW die intestate. It is common for people to avoid thinking about their own mortality, secure in the belief that they will have time later to make preparations. People also delay making a will because they feel that they do not have to make testamentary arrangements because they have limited assets. This, unfortunately, leaves grieving family members with the more difficult responsibility of administering an intestate estate. As there is no legal record of the deceased’s wishes, there is more potential for family members to fight over what the deceased may have wished for the disposition of their estate.

Partially Intestate Estates In NSW

It is also common for estates in NSW to be partially intestate, because a testator’s will is not regularly updated and does not make provision for every asset of the estate. A solicitor can draft a will in such a way as to make provision for future changes, but even then the testator needs to make periodic updates to ensure that the will remains valid, thereby avoiding the estate being partially intestate. Wills need to be updated at every major life milestone, such as births, marriages and deaths, and after the purchase or sale of real property.

Indeed, when a resident of NSW gets married their old will is partly revoked, unless it was written with the marriage in mind. The only clauses that survive are those that relate to the appointment of the spouse as executor or trustee, and any gifts for the spouse. This means that any other beneficiaries are excluded from receiving their bequests unless they are also entitled to inherit under intestacy laws. In practice, this eliminates any charitable donations and gifts to friends or distant family.

If a NSW testator divorces their spouse this also has an impact on the validity of their will, unless it is drafted to specifically state otherwise. Upon divorce, any distribution to the spouse or appointment of them to positions of responsibility in the administration of the estate are revoked.

Administration Of Intestate Deceased Estate

In order for someone to administrate an intestate estate in NSW, they need to first apply to the Supreme Court of NSW for Letters of Administration. An application for probate needs to be made in the 6 months period following the death of the deceased. A late application may be accepted if the applicant can demonstrate, via affidavit, that there is a reasonable explanation for the delay.

Eligible applicants are those who are entitled to inherit from an intestate estate, so typically a grant is afforded to one of the deceased’s next of kin, such as the spouse or de facto partner of the deceased. Several eligible people can apply jointly to the Supreme Court, or one person can apply and attach an affidavit of consent from all other eligible parties. In the event that no close relatives step forward to apply for Letters of Administration, the court can issue the grant to anyone they deem appropriate, including the NSW Trustee & Guardian.

Laws Of Succession And Intestacy

Letters of Administration authorise an applicant to administer an intestate estate according to the succession rules outlined in the Succession Act 2006. The order of succession for an intestate estate depends on the familial circumstances of the deceased, but generally the next of kin inherits. In NSW, if the deceased was legally married or in a domestic or de facto relationship when they passed away, then the spouse is the sole inheritor of the estate. Children of the spouse and the deceased do not inherit from an intestate estate, but children born from another relationship are entitled to a share of the estate. When the deceased had children not related to the current spouse, the spouse inherits the personal belongings of the deceased, a statutory legacy based on the Consumer Price Index and half of the residual estate. The children unrelated to the surviving spouse inherit the other half of the remaining assets.

If the deceased does not have a spouse at death then any children inherit the intestate estate, and if the deceased had neither children nor spouse, then the order of succession moves on to the parents of the deceased, then the siblings of the deceased, nieces and nephews, grandparents, uncles and aunts and lastly cousins. In the event that no such relatives can be located, then the intestate estate is transferred to the state.

Categories Of Spouse And Issue

NSW succession law defines the category of spouse broadly to include anyone who was married to the deceased or in a registered or de facto relationship, or domestic partnership. An estranged spouse who is separated from the deceased at the time of death but not yet divorced is still entitled to inherit the spousal portion of the estate. It is a more complicated process for a de facto partner to prove their entitlement to inherit from an intestate estate, as they must satisfy the court that the relationship has lasted for two years or that the couple conceived a child. A domestic relationship is legally verified according to a wide variety of factors, particularly the duration of the relationship and the degree to which their lives are intertwined.

The other category of prospective beneficiary from an intestate estate is the “issue” of the deceased. In NSW the legal definition of issue includes children that are the biological offspring of the deceased, whether their parents are married or not and the children that were legally adopted by the deceased before their death.

Armstrong Legal can assist you if you have questions about your own will or the intestate estate of a loved one. The Wills and Estates Team at Armstrong Legal has extensive experience with intestate estates and can advise you on any other legal matter. Please call 1300 038 223 or contact the office via email to make an appointment.

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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