If you die without making a Will, you will have died intestate. This means that you have not disposed of your assets in a valid manner.
In New South Wales, laws of intestacy will determine how your assets are to be distributed. The laws of intestacy in New South Wales are set out in the Succession Act 2006 (NSW) and the Probate and Administration Act 1898 (NSW).
This may have unintended consequences depending on how you had wished your assets to be distributed. For example, if you had a disabled child who you wanted to allocate a greater portion of your estate so as to meet their higher costs of living, without a Will they may receive a share in your estate equal to your other surviving children.
Likewise, if you had wished to give a specific gift to a beneficiary, like a motor vehicle, or jewellery, those assets may be liquidated, and the proceeds distributed equally to the eligible beneficiaries.
What's the procedure?
Before a person can be declared to have died intestate, an exhaustive search for a Will must be made. This will include writing to local solicitor firms, any banking institutions the deceased banked with, and the NSW Trustee & Guardian to ascertain whether the deceased had a Will stored with any of those institutions. If there is no Will, a grant of Letters of Administration will be applied for, if required.
Grant of Letters of Administration
If a Grant of Letters of Administration is required, the application should be made within 6 months of the death of the deceased.
Who can apply?
The most common application for a Grant of Administration come from the surviving spouse or de-facto spouse of the deceased. If there is no spouse or de-factor spouse, generally to order of who is eligible to make an application and inherit is as follows:
- Aunts and uncles;
To make an application the following forms must be completed:
- Summons for a Grant of Administration;
- Affidavit of Applicant for administration;
- Inventory of property;
- Affidavit that Deceased was not in a Defacto relationship (if required);
- Grant of Letters of Administration.
Further forms may required depending on the complexity of the matter.
The process for applying for a Grant of Letters of Administration can be difficult, and time consuming. If you require assistance in making an application for a Grant of Administration please contact our office to make an appointment for a free consultation.