Intestacy – what do I do?

Didn’t sign a Will? Hope is not lost but you can’t control who gets your estate.

If a person dies without a Will it is what is known as an “Intestacy”.

An intestasy can also exist if a deceased person has a Will but it doesn’t dispose of all of their property. That circumstance is not very common but might be more frequent where a person makes a ‘do-it-yourself’ Will.

In NSW there are clear laws by Statute about how a deceased person’s estate is to be dealt with in the event of an intestacy.  The law is set out in Schedule 4 of the Succession Act 2006 (NSW).

While there is a degree of logic as to who should benefit in an Intestate Estate, if a deceased person dies having children by a former partner but has entered a new de facto relationship or remarried the new partner takes a substantial portion of the estate and the children of the deceased by that former relationship share considerably less than half of the estate. The law determines that the new spouse should be provided for from the estate in preference to the children of the deceased.

Accordingly if it is your intention that your children should inherit in preference to your new spouse or in a specific way you should always ensure you have a valid Will!

Letters of Administration

An Intestate Estate cannot be managed unless Letters of Administration are granted by the Supreme Court of New South Wales.

Letters of Administration are an Order from the Supreme Court conferring on the person the power to administer the estate. “Asset holders” (e.g. banks or NSW Land Registry Service) will take instructions from the appointed Administrator in the same way as a person who has been granted Probate of an Estate.

The application for Letters of Administration is similar to that as an application for Grant of Probate however additional steps are required including to give evidence that the deceased left no Will and giving certainty as to who the beneficiares of the estate should be pursuant to the Succession Act.

Only specific persons can make application for Letters of Administration. Section 63 of the Probate and Administration Act 1898 (NSW) provides that the preference is for the Spouse, or if there is no Spouse, the “next of kin”. Next of kin is not defined in that Act (the term “senior next of kin” is defined in the Coroners Act but that is a different context). The Court will look to a person or persons who are adult beneficiares of the estate in preference to others even if those others may be more appropriate from another perspective – e.g. a court wll prefer an 18 year old beneficiary that an adult brother or sister of the deceased.

It is our view an Application for letters of Adminisration should not be made without legal advice. Please contact us if circumstances have left you in the position of dealing with an intestate estate.