Intestacy Law in NSW

What Happens if You Die Without a Will in NSW?

When a person dies without leaving a valid Will, they are said to have died intestate. In these circumstances, the distribution of their estate is determined by the intestacy provisions of the Succession Act 2006 (NSW) rather than by their personal wishes.

The intestacy rules determine which relatives are entitled to inherit and the order in which those entitlements arise.

Who Administers an Intestate Estate?

Where there is no executor appointed under a valid Will, it may be necessary for an eligible person to apply to the Supreme Court of NSW for a Grant of Letters of Administration.

The person appointed by the Court is known as the administrator. The administrator is responsible for collecting the estate assets, dealing with liabilities and distributing the estate in accordance with the NSW intestacy rules.

Who Inherits if There Is a Surviving Spouse?

If the deceased leaves a surviving spouse and any children of the deceased are also children of that spouse, the surviving spouse will generally be entitled to the whole intestate estate.

Different rules apply where the deceased leaves a surviving spouse and one or more children who are not children of that surviving spouse.

In those circumstances, the surviving spouse may be entitled to the deceased’s personal effects, a statutory legacy and part of the remaining estate. The deceased’s children may also be entitled to share in the balance.

The statutory legacy is adjusted in accordance with the Consumer Price Index, so the amount applicable to an estate depends upon the relevant date.

What if There Is More Than One Spouse?

For the purposes of NSW intestacy law, there may in some circumstances be more than one surviving spouse, for example where the deceased was married to one person and was also in a qualifying de facto relationship.

Special provisions apply to the distribution of an intestate estate where there is more than one spouse. The outcome can also be affected by whether the deceased leaves children who are not children of a surviving spouse.

Legal advice should be obtained where an estate involves multiple spouses or a blended family.

Who Inherits if There Is No Surviving Spouse?

If there is no surviving spouse entitled to the estate, NSW intestacy law provides an order in which eligible relatives may inherit.

Broadly, the order includes:

• children and other eligible descendants;
• parents;
• brothers and sisters and, in certain circumstances, their descendants;
• grandparents;
• aunts and uncles and, in certain circumstances, first cousins; and
• the State of New South Wales if there are no eligible relatives.

The rules governing entitlement within each category can be complex, particularly where a relative has died before the deceased or where there are multiple family relationships.

Children and Blended Families

Intestacy can produce outcomes that a person may not have intended, particularly in blended families.

For example, where the deceased has children from a previous relationship as well as a surviving spouse, the estate may be divided between the spouse and the deceased’s children according to the statutory rules.

This is one reason why having an appropriately prepared and current Will can be particularly important for people with children from previous relationships.

What Happens if There Are No Eligible Relatives?

If no person is entitled to an intestate estate under the statutory order of relatives, the estate ultimately passes to the State of New South Wales, subject to the applicable provisions of the succession legislation.

Indigenous Estates

The Succession Act 2006 (NSW) contains provisions dealing with the distribution of certain intestate Indigenous estates.

In appropriate circumstances, an application may be made to the Court for a distribution order that takes into account the laws, customs, traditions and practices of the Indigenous community or group to which the deceased belonged.

Letters of Administration

Administering an intestate estate can involve identifying the people legally entitled to inherit, establishing family relationships, collecting estate assets, paying liabilities and distributing the estate according to the statutory rules.

Russell Kelly & Associates can assist with applications for Letters of Administration and advise administrators about their responsibilities in dealing with an intestate estate.

Learn more about Probate and Deceased Estates in NSW.

Avoiding Intestacy by Making a Will

A valid and up-to-date Will allows you to nominate an executor and record how you wish your estate to be distributed rather than relying upon the statutory intestacy rules.

Your Will should also be reviewed when significant circumstances change, including marriage, separation, divorce, the birth of children or substantial changes to your assets.

Learn more about Wills, Powers of Attorney and Enduring Guardianship.

Advice About Intestacy and Deceased Estates

If a family member has died without a valid Will, or you need assistance applying for Letters of Administration, Russell Kelly & Associates can advise you about the administration and distribution of the estate.

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This information is general in nature and does not constitute legal advice. Legal advice should be obtained about your particular circumstances.