If the deceased person didn’t have a will, their property or estate is distributed according to fixed rules set down by law. The exact laws differ slightly from State to State.

These “default” rules don’t consider the individual circumstances of any family members and sometimes their application can lead to unfair and unjust results. This is where an experienced will dispute lawyer may be able to help.

For a free initial consultation with an experienced will disputes lawyer and a succession barrister please call us on 1800 571 113.

Learn more: What happens if someone dies without a will?

Most likely, yes. Just because a document is considered a suicide note does not mean it cannot also be considered as the deceased’s will. The court will consider several factors in order to conclude the deceased did intend for the suicide note to be their will. For example, the court will look to whether dispositive language was used on the note, such as “I wish to give you all my belongings”, whether the making of the document was on a solemn occasion and whether the deceased took steps to ensure the note would be noticed by other people.

To die intestate means to pass away without having made a legally valid Will. A person can also be considered ‘partially intestate’ if their Will does not effectively deal with all of their assets. For example, if a Will distributes specific gifts but fails to account for the remainder of the estate, the rules of intestacy will apply to the leftover assets.

When this occurs, the Succession Act 2006 (NSW) dictates how the deceased’s estate must be distributed. This legal framework ensures that assets are passed on to the closest surviving relatives in a specific order of priority.

The intestacy rules provide a strict hierarchy for distributing an estate when there is no Will. The order of entitlement is designed to prioritise the deceased’s closest family members.

The general order is as follows:

1. Spouse(s) only: If the deceased leaves a spouse (or spouses) but no children, the spouse is entitled to the entire estate.

2. Spouse(s) and children: If the deceased leaves a spouse and children, the distribution depends on whether the children are also the children of that spouse.

3. If the children belong to the relationship with the surviving spouse, the spouse inherits the entire estate.

4. If the deceased had children from a previous relationship, the surviving spouse receives a set amount (a statutory legacy, adjusted for inflation), the deceased's personal effects, and half of the remaining estate. The children from the other relationship receive the other half of the remaining estate.

5. Children only: If there is no surviving spouse, the children inherit the estate in equal shares.

6. Parents: If there is no spouse or children, the parents inherit the estate.

7. Siblings, then nieces and nephews: If parents are no longer living, siblings are next in line.

8. Grandparents, then aunts and uncles: The hierarchy continues to grandparents, and then to aunts and uncles if no closer relatives survive.

9. The Crown: If no eligible relatives can be found, the estate passes to the NSW Government (the Crown).

Under the Succession Act, the term ‘spouse’ includes more than just a legally married person. It can also refer to:

• A de facto partner.

• A registered relationship under the Relationships Register Act 2010.

A person is considered a de facto partner if they were in a relationship as a couple living together, even if not legally married. The relationship must have lasted for a continuous period of at least two years, or have resulted in the birth of a child.

Yes. It is possible for a person to have multiple spouses at the time of their death under the law. For example, a person may have been legally married but separated, and also living in a de facto relationship with a new partner.

In such cases, the law provides that the spouses will share the entitlement. They can either negotiate a distribution agreement between themselves or apply to the court for a distribution order that divides the share fairly.

Yes. If you are an eligible person and believe the share you are entitled to under the intestacy rules is inadequate for your needs, you can still make a Family Provision Claim against the estate. This is the same legal process used to contest a Will. The court will assess your financial needs and relationship with the deceased to determine if a greater provision should be made for you from the estate.

When there is no Will, there is no appointed executor. In this situation, an eligible person—usually the closest next of kin who stands to inherit—must apply to the Supreme Court for what are known as Letters of Administration.

This court order grants the person (the ‘administrator’) the legal authority to manage and distribute the deceased’s estate according to the intestacy rules. The administrator’s role is very similar to that of an executor.

Applying for Letters of Administration is a formal court process that requires careful attention to detail. The key steps include:

1. Publishing an Online Notice: You must publish a notice of your intention to apply for administration on the NSW Supreme Court registry website. This notice must be published at least 14 days before you file your application.

2. Conducting Searches: You need to perform thorough searches to confirm that the deceased did not leave a valid Will.

3. Preparing Court Documents: You must complete and file several documents with the court, including a summons, an affidavit from the administrator, and an inventory of the estate's assets.

4. Filing the Application: Once the documents are prepared, they are filed with the Supreme Court.

Given the complexity of this process, seeking guidance from a will dispute lawyer is highly recommended to ensure it is done correctly.

The person with the greatest entitlement to the estate under the intestacy rules has the primary right to apply to be the administrator. For example, if the deceased is survived by a spouse, the spouse has the first right to apply. If there is no spouse, a child of the deceased would be next in line.

If the person with the greatest entitlement does not wish to take on the role, they can consent to another eligible relative applying. In some circumstances, the NSW Trustee & Guardian can also be appointed.