Having a will prepared is the best way to ensure distribution of a person’s estate is done in accordance with the deceased person’s wishes. Unfortunately, sometimes a person will pass away without a will.
The first step is to conduct a thorough search for the deceased’s will. If no will can be located, the deceased would have died intestate; meaning without a valid will. The provisions in the Succession Act 2006 (NSW) how the assets are dealt with:
If the deceased left a spouse and no children, the spouse is entitled to the whole estate;
If the deceased left a spouse and children, and the children are the spouse’s children, the spouse is entitled to the whole estate.
If the deceased left a spouse and children, but the children are not the spouse’s children, the spouse is entitled to:
The intestate’s personal effects;
A statutory legacy; and
One-half of the remainder (if any) of the estate
If the deceased left no spouse or child, then the order of inheritance becomes: their parents; their brothers or sisters; their nephews and nieces; their grandparents; their aunts or uncles; and, finally, their first cousins.
Only where the deceased died without any eligible relatives, will their estate potentially pass to the State.
The provisions also apply in the situation that the deceased was not divorced but separated and also in a de facto relationship with another person. Both partners will be eligible beneficiaries of the deceased’s estate.
What do I do if my friend or family member dies without a Will?
Where the deceased had no valid will, Letters of Administration can be sought from the court to allow for the management and distribution of the estate of the deceased in accordance with the above.
Generally, only those who are entitled to a share of the estate are able to apply for a grant of Letters of Administration. The court may grant Administration to:
the spouse of the deceased
one or more of the next of kin
the spouse jointly with other relatives.
If there is no next of kin, or none that are appropriate or willing to apply for the grant, then the Court may grant administration to the NSW Trustee & Guardian, or any other person the court thinks fit.
It is important to start this process quickly. If you apply more than 6 months after the date of death, you will need to file an affidavit of delay at the Supreme Court of New South Wales explaining the reason for the delay.
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