This article explains intestacy and letters of administration in NSW, Australia, and what it means for your estate. In most cases if you die without a valid Will the law decides who gets your estate. We refer to this as intestacy. Without a Will, it can lead to unexpected outcomes, delays, and even family conflict.
Here we’ll look at:
- The consequences of dying intestate. How can not having a Will affect the distribution of a deceased’s assets?
- Who inherits under NSW intestacy laws when a person dies leaving assets? Find out the order in which the NSW court distributes your estate from spouses and children to extended family.
- Letters of administration requirements. We’ll help you identify the relevant documents and steps to take to apply for letters of administration in NSW.
By understanding intestacy you can make informed decisions about your future. Let us make sure your legacy reflects your wishes.
Intestacy: Dying Intestate
Intestacy is when a person dies without a Will and no one to manage their estate after death. In this case, one must lodge a request for “Letters of Administration” which is the formal consent of the court to someone to manage the deceased person’s estate with the Supreme Court.
The person with the greatest entitlement to the estate must apply to the court. More than one person can have this entitlement. This can be the spouse (or de facto spouse) or children of the deceased as long as they are the next of kin. The NSW Trustee & Guardian can also apply for you if you don’t want to do it yourself.
Also if the person entitled to the estate is not in Australia, the Court may grant administration to their attorney by virtue of a Power of Attorney.
When the court grants the letters of administration, the administrator has the legal authority to confirm the relatives who are entitled to a share in the deceased’s estate. The entitlements must be in accordance with the intestacy rules under the Succession Act 2006 in NSW.
Who Inherits?
This table will show who will inherit from an intestate estate and what they will inherit:
| Relatives | What they will inherit |
| Current spouse and children from the relationship. | The entirety of the estate belongs to the surviving spouse unless there are children from a previous relationship. |
| Current spouse, children from the relationship, and children of the deceased from a previous relationship. | If the deceased person also has children from previous relationships, the current spouse is entitled to: – all of the personal effects – statutory legacy (AUD482,000 in 2020*)(if the estate does not cover the statutory legacy, then the spouse will be entitled to everything in the estate.) and half of whatever is left of the estate. The remaining half of the estate is shared equally between all surviving children. |
Note that depending on personal circumstances, there can be considerable differences in the above table. Talk to a solicitor to understand your particular case.
Letters of Administration: NSW Trustee & Guardian
If the Court grants letters of administration to the NSW Trustee & Guardian they will confirm the relatives who have entitlement to a share of the deceased’s estate.
Usually, it’s a straightforward process but if there are genealogy issues the NSW Trustee & Guardian’s genealogy team will conduct a research investigation to identify, locate, and prove the relatives who are entitled to the estate.
Careful and thorough research is done to ensure the deceased’s estate is distributed correctly. If they can’t prove the relatives who are entitled to the estate they will apply to the NSW Supreme Court for an order to distribute the estate according to their findings.
Here the court must be satisfied that all reasonable efforts have been made to prove entitlements. Then the court will distribute the estate.
Letters of Administration Requirements
Under the Succession Act, there are specific requirements the applicant for letters of administration must meet.
- Prepare the following:
- original Death Certificate
- original will if there is no executor named or the executor is unable or unwilling to act and you are applying for Letters of Administration with the will annexed.
- Get the following:
- full name of the deceased
- last address of the deceased
- date of death
- address and details of any assets (property) in NSW
- details of any debts owed by the deceased
- full names of the beneficiaries under the rules of intestacy including their age and entitlements
- an email address for notices to be sent.
- Get certified true copies of the following:
- Marriage Certificate of the deceased,
- Birth Certificate of the deceased,
- Birth Certificate(s) of other people entitled under intestacy,
- Death Certificate(s) of any person who would have been entitled under intestacy
- Divorce Certificate or evidence the deceased was divorced from any person who would have been entitled under intestacy.
- Register for an account with the Probate Service. You can use the Probate Service to apply for Letters of Administration if your application is unopposed. You must talk to a wills and estate lawyer for full advice.
- Apply for a grant of representation.
- Download, print, and complete the forms. You must sign these in front of your witnesses.
- Summons for Administration (Form 111) (or Letters of Administration with the Will Annexed)
- Grant of Administration (Form 112) (or Grant for Letters of Administration with the Will Annexed)
- Inventory of Property (Form 117)
- Affidavit of Applicant for Administration (Form 119)
- Affidavit of Application for Administration with the Will Annexed (Form 120)
- Upload these. Note you must pay a filing fee if the estate is over AUD100,000.
SEE: Step-by-step Application Guide
Talk to a Wills and Estate Lawyer in NSW
It’s always best to talk to a Wills and estate lawyer if your case involves estate and property distribution. They can explain the NSW intestacy laws, who gets what, and what potential issues may arise. JB Solicitors are family lawyers. We can do the legal work, paperwork, court work and probate office matters.
Schedule a consultation today.
