Procedure on death if there is no will
If no will is found, it is usually presumed the deceased died 'intestate', that is, without a will.
If you do die without a will your estate does not automatically pass to the State (Crown), as is often assumed. Chapter 4 of the Succession Act 2006 (NSW) sets out the order in which your eligible relatives will inherit your estate if you die without a will. It is only if you die without eligible relatives that your estate will pass to the State (see Who is eligible to inherit if there is no will? below). The sections of the Act which stipulate who will inherit are known as intestacy rules.
It is always better to make a will — that way you make your own decisions about who will inherit your estate, rather than having the intestacy rules apply. You can choose to benefit your favourite charity, a friend or a remote relative who may not be included under the intestacy rules. In addition, you will save your family and loved ones a great deal of administrative work, anxiety and pain if you have left a clear will, rather than making them go through the process of establishing themselves as eligible relatives.
Funeral and administration expenses
Section 103 of the Succession Act makes it clear that any entitlement to an intestate estate is after funeral, administration expenses and liabilities have been paid.
Application for Letters of Administration
Letters of Administration are a court order that allows an estate to be administered when there is no will, or when the will does not appoint an executor. After the proper inquiries show that no will has been left, one of the eligible relatives can apply for Letters of Administration. This involves steps similar to those required for a Grant of Probate (see Applying for a Grant of Probate in the Procedure on death if there is a will chapter).
The following documents will need to be filed at the Supreme Court in addition to those required for Probate:
- an affidavit stating that the deceased was not living in a de facto relationship, unless the application is being made by the de facto spouse (which can include a same sex partner) in which case a detailed affidavit is required confirming the applicant is a de facto spouse
- an affidavit of applicant for administration (instead of affidavit of executor) (see below)
- an administration bond, if required (see below).
Affidavit of applicant for administration
The affidavit of applicant for administration must:
- identify the deceased’s eligible relatives by supplying the necessary birth, marriage and death certificates
- list the searches made for a will or other document that sets out the deceased person’s testamentary intentions
- the notice of intention to apply should also be published at least 14 days prior to the application; the same as for a Probate application (see Probate in the Procedure on death if there is a will chapter).
Before December 2001, the applicant had to lodge an administration bond securing the entitlements of next of kin who were not parties to the application and had not consented to it. This requirement did not apply when the application was made by all the beneficiaries in the estate.
Since December 2001, an adult beneficiary who is not a party to the application for administration need only be served with notice of it. In some cases, a bond may be required, for example to secure the entitlements of a beneficiary under 18. Unfortunately, at the time of writing, no insurance company provides these bonds. There are alternatives: for example, a surety (that is, a personal guarantee). If there is a need for such a bond, the issue should be discussed with a lawyer.
Who is eligible to inherit if there is no will?
If you die without eligible relatives
If you die without a will and do not leave any eligible relatives, your estate will pass to the State (Crown). However, the State does have the discretion to provide for any dependants of the deceased or any other person the deceased might reasonably have been expected to provide for if he or she had made a will. An application must be made to the Crown Solicitor by anyone wanting to claim. This situation is dealt with by Part 4.5 of the Succession Act.
Statutory order of eligible relatives (intestacy rules)
The Succession Amendment (Intestacy) Act 2009 (NSW) commenced on 1 March 2010. It forms Chapter 4 of the Succession Act. There were significant changes to ‘intestate succession’ — or who is eligible to inherit the property of a person who
has died without a will.
Major changes to previous intestacy rules include:
- emphasis on the primacy of the spouse’s entitlement to an intestate estate
- the concept of multiple spouses
- no distinction is made between brothers and sisters being full blood or half blood
- first cousins can now inherit
- the categories of persons who can apply to the State for provision if there are no eligible relatives has been expanded
- eligible relatives must survive the intestate by 30 days and be born before the intestate’s death; if born after the intestate’s death, he or she must have been in utero before the intestate’s death and survive at least 30 days after birth
- specific provision for Indigenous people.
The statutory order basically divides eligible relatives into two parts – spouses and other relatives. If the deceased is an Indigenous person, the statutory order is subject to exclusion or modification by a distribution order under Part 4.4 of the Act (see Indigenous persons’ estates, below).
A spouse is defined as person who was married to the deceased immediately before the death or who was a party to a domestic partnership immediately before the death (which may include a de facto spouse). This does not include ex-spouses (see Succession Act, section 104).
Spouse’s entitlements are set out in Part 4.2 of the Succession Act.
- If the deceased leaves a spouse and no children, the spouse is entitled to the whole estate.
- If the deceased leaves a spouse and children, and the children are the spouse’s children, the spouse is entitled to the whole estate.
- If the deceased leaves a spouse and children, but the children are not the spouse’s children, the spouse is entitled to:
- the intestate’s personal effects (defined in section 101), and
- a statutory legacy of $350,000 plus adjustment for CPI from December 2005, and interest if the statutory legacy is not paid in full within one year of the date of death (for the definition of statutory legacy, see section 106)
- one-half of the remainder (if any) of the estate.
If the deceased leaves more than one spouse, but no children, the spouses are entitled to the whole estate in shares determined by the Succession Act (see below).
If the intestate leaves more than one spouse and children who are all issue of one or more of the surviving spouses, the spouses are entitled to the whole estate in shares determined by the Succession Act (see below).
If the intestate leaves more than one spouse and children who are not issue of a surviving spouse:
- the spouses are entitled to share the intestate’s personal effects (as defined in section 101), and
- the spouses are entitled to share the statutory legacy that would be payable if the intestate had left only one surviving spouse, and
- the spouses are entitled to share the one-half of the remainder (if any) of the estate.
If property is to be shared between spouses, the property is to be shared:
- in accordance with a written agreement (a distribution agreement), or
- in accordance with an order of the court (a distribution order), or
- if certain conditions are satisfied, in equal shares (the default position).
The conditions enabling a distribution to multiple spouses in equal shares are set out in sections 125(2) and (3) of the Succession Act. They relate to notice which must be given to each spouse by the administrator.
Definition of domestic or de facto partnership
A domestic partnership is a relationship between the intestate and another person that is a registered relationship or interstate registered relationship within the meaning of the Relationships Register Act 2010 (NSW) or a de facto relationship that:
- has been in existence for a continuous period of at least two years, or
- has resulted in the birth of a child (section 105).
A de facto spouse is defined under the Interpretation Act 1987 (NSW) (see Family provision orders in the Contesting a will chapter).
If it is necessary to determine whether a relationship is a de facto relationship, all the circumstances of the relationship are taken into account. Some of the factors that may be considered are:
- the duration of the relationship
- nature and extent of common residence
- whether or not a sexual relationship exists
- degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
- ownership, use and acquisition of property
- degree of mutual commitment to a shared life
- care and support of children
- performance of household duties
- reputation and public aspects of the relationship.
Spouse' preferential right to acquire property from the estate
The spouse’s preferential right to acquire property from the deceased’s estate is detailed in sections 114 to 121 of the Succession Act. It does not apply if there is more than one spouse. If you wish to preferentially acquire property, it is recommended that you consult a lawyer, as there are various conditions. These provisions are wider than the previous provisions which only allowed a spouse to acquire the shared (matrimonial) home.
Distribution among other relatives
In basic terms, the order of relatives who can inherit if there is no spouse is as follows:
- brothers and sisters
- aunts and uncles
Each ‘category’ must be exhausted before moving on to the next and once an eligible relative is found, the process stops.
Entitlement of children
If the deceased leaves no spouse but leaves children, the deceased’s children share the whole estate equally.
If the deceased only leaves children who are the issue of a surviving spouse, those children will not inherit any part of the deceased’s estate (as the estate will pass to the spouse).
If the deceased leaves a spouse or spouses and children who are not the children of a surviving spouse, and part of the estate remains after satisfying the spouse’s or spouses’ entitlements, the deceased’s children are entitled to the
remaining part equally.
If a child of the deceased has died before the deceased, and has surviving children, those children will take the deceased child’s share equally. This continues through the generations until the entitlement is exhausted. That is, if the deceased child’s child (the grandchild of the intestate) is also deceased, the share will pass to his or her children, i.e. the great grandchildren of the intestate. If the dead child had no children, their share is divided among the intestate’s other surviving children.
Who is a child of the deceased?
The answer has become more complex since the introduction of surrogacy law, artificial insemination and in vitro fertilisation and the right of same-sex couples to adopt. Section 109 of the Succession Act provides that an adopted child is to be regarded for the purposes of intestacy rules, as a child of the adoptive parent or parents.
If you are unsure about whether a particular child is an eligible relative under the intestacy rules you should consult a lawyer.
Where the deceased leaves no spouse and no children, but has parents living, the parents will get equal shares of the estate. If only one parent is alive, the whole estate will go to that parent.
Brothers and sisters
Where the intestate leaves no spouse, child, or parent, then their brothers and sisters share the whole estate equally. Half sisters and brothers are now specifically included. If the intestate had a brother or sister who died before them, leaving a child or children who survive the intestate, the child or children (the intestate’s nieces or nephews) take the share of the intestate’s deceased brother or sister. This continues through the generations until the entitlement is exhausted.
If the deceased leaves no spouse, child, parent, brother or sister, or issue of a deceased brother or sister – then the grandparents of the intestate share the whole estate equally.
Aunts and uncles
If the intestate leaves no spouse, child, parent, brother or sister, or issue of a deceased brother or sister (nephew or niece), and no grandparent, the brothers and sisters of each of the intestate’s parents (the intestate’s aunts and uncles) are entitled to the whole estate equally.
If an aunt or uncle dies before the intestate leaving a child who survived the intestate (a cousin of the intestate), the cousin or cousins will share equally the deceased aunt or uncle’s share of the estate. This only extends to first cousins. If a first cousin predeceases the intestate, the cousin’s children (second cousins of the intestate) do not inherit.
Indigenous persons' estates
Section 101 of the Succession Act provides the following definition of an Indigenous person. An Indigenous person is a person who:
- is of Aboriginal or Torres Strait Islander descent, and
- identifies as an Aboriginal person or Torres Strait Islander, and
- is accepted as an Aboriginal person by an Aboriginal community or as a Torres Strait Islander by a Torres Strait Islander community.
The personal representative of the Indigenous estate (administrator) or a person claiming to be entitled to a share of the intestate estate under the laws, customs, traditions and practices of the group to which the deceased belonged, may apply to the court for an order for distribution of the estate. The application must be made within 12 months of the grant and before the estate is fully distributed. The application must be accompanied by a scheme for distribution.
A recent case, In the Estate of Mark Edward Tighe  NSWSC 163, may be useful for anyone considering an application under this section. The court set out 11 matters which may need to be addressed in an application.
Absence of persons entitled
If the intestate dies leaving no person who is entitled to the estate, the State is entitled to the whole estate, subject to its discretion to make provision (see If you die without eligible relatives above).