When a person dies intestate (without a will) in New South Wales, their estate is distributed according to the rules set out in the Succession Act 2006. This page sets out how estates are administered under intestate law in New South Wales.
Who is intestate?
Under section 102 of the Succession Act 2006, a person is intestate if they die without a will or if they die with a will that does not dispose effectively of their property. A person may also be dealt with as an intestate if they leave a will that is subsequently found to be invalid.
Letters of administration
When a person dies intestate in New South Wales, the Supreme Court will make a grant of letters of administration. This empowers an administrator to distribute the deceased’s assets in accordance with the Succession Act 2006.
Spouses
If a person in New South Wales dies intestate, leaving a spouse but no children, the spouse will inherit the whole estate. If there is a spouse and children who are the children of the spouse, the spouse will inherit the whole estate.
If a person dies intestate and leave a spouse and children who are not the children of the spouse, the spouse is entitled to:
- the deceased’s personal effects
- a statutory legacy
- half of the remainder of the estate
The Act defines a spouse as a person who was married to, or in a domestic partnership with the deceased immediately before their death. The Act also sets out what is to occur if there was more than one spouse or partner.
Children
If a person dies intestate and leaves children but no spouse, the children are entitled to the whole estate in equal shares. If a child of the deceased has predeceased them, their share of the estate will be divided equally between their children and grandchildren.
Other relatives
If a person dies intestate and has neither spouse or children, their estate will be divided between their other relatives.
In New South Wales, relatives are entitled to inherit in this order:
- parents
- siblings
- grandparents
- aunts and uncles
Dying intestate vs making a will
When a person dies intestate, their wishes for the distribution of their estate cannot be taken into account. This means that their assets may be distributed in a way that does not reflect which family members or other persons were closest or most important to them.
If a person makes a valid will that disposes of all their assets, they can ensure that their wishes are followed after their death. They can also ensure that their loved ones are aware in advance of how the estate is going to be distributed. This is likely to reduce the burden on family members as they will have clear instructions as to what the person wanted.
A will also allows a person to appoint one or more people as executors. The executor/s are responsible for distributing the estate in accordance with the deceased’s wishes. A testator may choose the family member or friend who is best placed to act as executor to reduce the likelihood of conflict between beneficiaries.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
