What happens if I die without a will in NSW?
In New South Wales (NSW), if an individual passes away without a valid Will, they are considered to have died intestate. This situation invokes the intestacy provisions of the Succession Act 2006 (NSW), which dictate how the deceased’s estate is to be distributed among surviving relatives. This means that the law will determine who gets your estate.
Intestacy Laws Under the Succession Act 2006 (NSW)The Succession Act 2006 (NSW) outlines a specific order of inheritance for intestate estates.
The distribution hierarchy is as follows:
1. Spouse and No Children: If the deceased leaves behind a spouse but no children, the spouse is entitled to the entire estate.
2. Spouse and Children: When both a spouse and children survive the deceased, the spouse receives:
- The personal effects of the deceased.
- A statutory legacy (a fixed sum adjusted periodically).
- Half of the remaining estate balance.
The children share the other half of the remaining estate equally.
3. Multiple Spouses: In cases where the deceased had multiple spouses (e.g., a spouse and a de facto partner), the distribution may be determined by a distribution agreement between the spouses or, failing that, by the Supreme Court.
4. No Spouse but Children: If there is no surviving spouse, the entire estate is divided equally among the children.
5. No Spouse or Children: In the absence of a spouse and children, the estate passes to other relatives in a specific order:
- Parents.
- Siblings.
- Grandparents.
- Aunts and uncles.
If no eligible relatives are found, the estate ultimately escheats to the State of NSW. Appointment of an Administrator Without a Will naming an executor, an administrator must be appointed to manage and distribute the intestate estate. The process involves:
1. Eligibility: Typically, the next of kin—such as a surviving spouse, de facto partner, or adult child—has the priority to apply for administration.
2. Application for Letters of Administration:
- o The eligible person applies to the Supreme Court of NSW for a grant of Letters of Administration.
- o This legal document authorises the administrator to collect and distribute the deceased’s assets according to intestacy laws.
3. Required Steps:
- Conduct a thorough search to confirm the absence of a valid will.
- Obtain the deceased’s death certificate.o Publish a notice of intention to apply for administration, allowing potential claimants to come forward.
- File the application with the Supreme Court, including necessary affidavits and supporting documents.
The administrator’s duties mirror those of an executor and include:
- Collecting and valuing the deceased’s assets.
- Paying outstanding debts and liabilities.
- Distributing the remaining assets to the rightful beneficiaries as dictated by the Succession Act.
Conclusion
Dying without a Will in NSW leads to the application of intestacy laws under the Succession Act 2006. These laws provide a clear framework for estate distribution and the appointment of an administrator. However, the process can be complex, and outcomes may not align with the deceased’s unexpressed wishes.
To ensure your estate is distributed according to personal intentions and to simplify the administration process for loved ones, it is advisable to create a valid Will.
For more detailed information, refer to the Succession Act 2006 (NSW) https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/sa2006138/ Applying for Letters of Administration: https://supremecourt.nsw.gov.au/wills-probate/applications/letters-of-administration.html
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