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Intestate Succession Act  (NSW)

The term “intestate” is used to refer to a person who dies without leaving a valid will. When this occurs, the wishes of a deceased for their estate are not legally established, so the estate is administered in line with the relevant intestate succession act. In New South Wales the relevant legislation is the Succession Act 2006. Intestate estates are distributed to beneficiaries in a set order that favours the surviving spouse and children of the deceased. This article outlines the key rules that apply to administering an intestate estate under the NSW Succession Act.

What is an Informal Will?

It is not uncommon for someone to think that they have a valid will, and then upon their death, it is found that there are problems with the will. This typically comes about when someone drafts their own will and does so in a way that does not observe the legal formalities. This type of document is known as an “informal will”.

For instance, a will must be signed by the testator in the presence of two independent witnesses, who themselves sign the document. A witness cannot be a spouse of the deceased or a beneficiary of the will. If a will is not properly signed or witnessed then the courts can deem the document invalid. The courts will try to respect the wishes expressed in an informal will if possible, otherwise, the estate will be administered according to the NSW intestate succession act.

What is Partial Intestacy?

In New South Wales, the estate of a deceased may still be subject to the intestate Succession Act even where there is a valid will. It is quite typical for a will to be outdated and fail to account for all the assets owned by the deceased when they died, which results in a partial intestacy. It is important that a will is updated regularly as assets are acquired, relationships begin and end, and beneficiaries are born and die. When an estate is found to be partially intestate, the personal representative must apply to the Supreme Court for a Grant of Letters of Administration to manage the overlooked assets.

What Happens When Someone Dies Intestate in NSW?

When someone passes away without a valid and current will in NSW, their loved ones are tasked with administering an intestate estate. The governing intestate succession act states that an eligible person must apply to the Supreme Court of NSW for a Grant of Letters of Administration. This grant authorises an administrator to act in place of an executor to manage the administration of the estate. If no close friend or family member is available to act as administrator, another eligible party (including a creditor of the deceased) can apply to the Supreme Court to be appointed, or the court may appoint the State Trustee and Guardian to act instead.

Who Inherits an Intestate Estate in New South Wales?

An intestate estate in New South Wales is distributed in line with a predetermined order of succession outlined in the Succession Act 2006. The distribution of assets depends on whether the deceased was married or in a domestic partnership at the time of death, and whether the deceased had children with someone other than their current spouse. According to the inheritance formula spelled out in the NSW intestate Succession Act, if the deceased has a surviving domestic partner or spouse, they will inherit the whole estate. The only exception to this general rule is if the deceased had children with someone other than the current spouse, in which case the estate must be divided between the current partner and the children. If the deceased died without a partner or children, then the order of succession continues on to parents, then siblings, grandparents and uncles and aunts and finally cousins.

Can De Facto Partners Inherit Under the NSW Intestate Succession Act?

NSW intestate law defines a de facto relationship as two adults who are not married, but who live together on a genuine domestic basis. The NSW intestate Succession Act establishes that de facto partnerships should be treated the same as marriages. A de facto relationship in NSW will be legally recognised if the parties have effectively merged their lives for at least two years, or had a child, or have registered their relationship with the government. The nature of a relationship is further defined in the Interpretation Act 1987 (NSW) as dependent on:

  • The duration of the relationship
  • The extent and nature of their cohabitation
  • Whether there is a sexual relationship
  • Whether the couple has merged finances
  • Whether the couple share ownership of property
  • The degree of shared commitment
  • The shared housekeeping and childrearing
  • Whether the relationship is widely known

Armstrong Legal can help you minimise the risk of your estate being subject to intestate legislation through expert drafting of your will and regular updates as your circumstances change. If you would like advice about intestate succession in NSW or have questions about estate law in general, please call us on 1300 038 223 or message for 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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