If you die without a valid will, you are said to die intestate.
The law then decides who receives your estate, not you.
The rules are in Chapter 4 of the Succession Act 2006 (NSW).
Who manages the estate
No executor is named, because there is no will.
A person must apply to the Supreme Court of NSW for a grant of letters of administration.
The person granted letters is called the administrator.
The Court generally grants administration to the person or people with the greatest right to the estate, such as a spouse or children.
NSW Trustee and Guardian can also act as administrator in some cases.
Until a grant is made, no one has full legal authority to deal with assets held in your sole name.
The order in which family members receive the estate
Relatives are placed in groups.
The first group with an eligible living person takes the estate.
The groups below it receive nothing.
- A spouse or de facto partner, where all of your children are also children of that partner. The partner receives the whole estate.
- A spouse or de facto partner, where you also have a child from another relationship. The partner receives your personal effects, a fixed sum set by law and adjusted for inflation, and half of what remains. Your children share the other half.
- No partner, but children. Your children share equally. If a child has died before you and left children, those grandchildren take their parent's share.
- No partner or children. Your parents share equally.
- No partner, children or parents. Your brothers and sisters share equally. The children of a brother or sister who has died take that share.
- Then your grandparents, in equal shares.
- Then your aunts and uncles in equal shares. The children of an aunt or uncle who has died take that share.
If none of these people are alive, the estate passes to the NSW Government.
What counts as a partner
A married spouse is a partner for these rules.
A de facto partner can also be a partner.
For an application for letters of administration, a de facto partner must show one of these:
- The relationship was registered under the Relationships Register Act 2010.
- The relationship was continuous for at least two years.
- A child was born of the relationship.
A de facto partner must give sworn evidence that the relationship existed.
Special rules apply where a person leaves more than one partner.
Why the result may not match your wishes
The rules follow a set formula.
They do not take account of your own plans.
A close friend, a carer or a stepchild who was never adopted is not in the list of relatives above.
A charity you supported receives nothing.
Where people get caught
Assuming a partner receives everything
Where you have a child from another relationship, your partner shares the estate with that child.
Assuming separation ends a partner's claim.
The rules look at the facts at the date of death. Get advice if you are separated but not divorced.
Assuming distant relatives will be found quickly.
Where the next of kin are hard to prove, research can take a long time, especially with records held overseas.
Leaving assets with no one able to deal with them.
Assets in your sole name usually need a grant before they can be collected or sold.
- Find out whether there really is no will. Check personal papers, any solicitor the person used, and NSW Trustee and Guardian.
- Work out who is entitled under the order above.
- Decide who will apply for letters of administration.
- Obtain the consent of the other people entitled, or serve them with notice of the application.
- Publish a notice of intended application on the NSW Online Registry and wait at least 14 days.
- File the application with the Supreme Court, generally within six months of the death. A later application must explain the delay.
- Once the grant is made, collect the assets, pay the debts and distribute the estate under the rules.
Make a valid will while you have capacity
Review it when your family or assets change.
A will lets you choose your executor, your beneficiaries and a guardian for young children.
Common questions
Does the government take my estate if I die without a will?
Only if none of the relatives in the list survive you. Relatives more distant than the children of an aunt or uncle are not included.
Can a de facto partner inherit without a will?
Yes. A de facto partner can be a partner under the rules. The partner must prove the relationship with sworn evidence.
What if a family member was left out by the rules?
Some people can apply to the Supreme Court for a family provision order, even where there is no will. Strict time limits apply.
Make a will so the law does not decide for you. Call (02) 8062 6300.
This article is general information only. It is not legal advice for your situation.