Intestacy is when a person dies without leaving a valid Will. If this applies to the situation of your family member, you or any family members must file an application to the Supreme Court for ‘Letters of Administration.’
The letters of administration is a document that provides for the court’s formal approval for a person to administer the estate of the deceased person. The administrator’s responsibility is to confirm relatives entitled to a share of the deceased estate.
In this article, we will explore the intestacy rules under the Succession Act 2006 (NSW).
Intestacy: Preliminary Provisions
Let’s start with some definition of terms under the Act. It is important to understand what these terms mean in the context of the NSW’s succession laws because we will encounter these in the later part of this article:
- An “eligible relative” is a relative of the intestate who is entitled to a share in the distribution of the estate of the deceased.
- “Personal effects” are the tangible personal property of the deceased.
- A person is considered to “predecease” the intestate if they do not survive the intestate.
- A “presumptive share” is the entitlement of the relative if they survive the intestate.
- A “spouse” is a person who was married to the intestate immediately before the intestate’s death or one who was a party to a domestic relationship with the intestate immediately before his or her death.
- An “intestate” is a person who dies and:
- Does not leave a Will or
- Leaves a Will but does not dispose of his or her properties effectively.
What Are the Entitlements of the Spouse?
Under the rules of intestacy, the surviving spouse is entitled to the entirety of the intestate estate. However, the following rules apply if there are children involved in the situation:
- The word “issue” under the Succession Act 2006 pertains to “children.”
- The spouse has rights to the entire intestate estate. This is if the deceased leaves a spouse but there are no children.
- The spouse has rights to the entire intestate estate. This is if the deceased leaves a spouse and the children are also the children of the spouse.
- If the children are not the children of the surviving spouse, the spouse is entitled to the following:
- the intestate’s personal effects, and
- a statutory legacy, and
- one-half of the remainder (if any) of the intestate estate.
Another important concept in the Act is the “spouse’s preferential right to acquire property from the estate.” This concept pertains to the spouse’s rights to acquire property from an intestate estate.
However, as a requirement, the spouse must obtain the Court’s authorisation if:
- the property is part of a larger aggregate, and
- the acquisition could significantly reduce the value of the remainder of the property or make the administration of the estate considerably more complicated.
The Court will grant an authorisation and impose certain conditions as it considers just and equitable. Some of the conditions might include one that will require the spouse to pay compensation to the remaining estate in addition to the consideration to be given for the property.
Nonetheless, the Court may also refuse to issue such authorisation. If the Court deems that the authorisation will not adequately address the said conditions.
Intestacy: How Does Estate Distribution Work Among the Surviving Relatives?
The distribution of the intestate estate follows a certain order. For easy reference, here’s a table of the statutory order of intestacy distribution:
Surviving Heir | Manner of Distribution |
A spouse and their partner living on a genuine domestic basis and there are surviving children of either of them and the deceased | The whole of the estate passes to the surviving spouse or domestic partner. Requisite: There must be no other children of the deceased from another relationship. |
A spouse and a domestic partner (multiple spouses) and there are children of either the deceased and the spouse or domestic partner | The spouse and domestic partner share the whole of the estate either: (a) in equal shares, or (b) by agreement or court order. |
A child or children other than to the spouse or domestic partner | The spouse and domestic partner lose their priority position and share the estate as follows: (a) the statutory legacy $350,000, (b) interest on the legacy, if outstanding, 1 year after the death of the deceased on the amount due from the 1 year anniversary, (c) personal effects (d) one half of the residue, if any The spouse and domestic partners share either: (a) in equal shares, or (b) by agreement or Court Order. |
No surviving spouse or domestic partner but there are children | Children get equal shares of the estate. |
No surviving spouse, domestic partner, nor children | No surviving spouse, domestic partner, or children |
No surviving spouse, domestic partner, children, nor parents | Any of the following may receive the whole estate (in this order): (a) brothers and sisters, (b) nieces and nephews, (c) grandparents, (d) uncles and aunts |
No one satisfies this order | Estate passes to the State of New South Wales. |
What if the Persons Entitled Are Absent?
The Succession Act states that if the intestate dies and does not leave a person who is entitled to his or her entire estate, the State shall be entitled to the whole of the estate. Consequently, the Minister may file an application for a waiver of the States’ rights.
The waiver will waive the State’s rights in whole or in part in favour of:
- the dependants of the intestate or
- in the Minister’s opinion, persons who have a just or moral claim in the intestate or
- any organisation or person for whom there is an expectation of a provision in the intestate or
- the trustees for any person or organisation in items (a) to (c).
Additionally, the waiver must be made in writing to the Crown Solicitor.
We Can Explain More About Intestacy Law
Australian succession laws can be perplexing to understand especially when it comes to intestate estate rules of distribution. An expert wills and estates lawyer from JB Solicitors can provide an in-depth explanation of rules of intestacy and your rights under the law.
We can guide you through the legal processes of intestacy. We also provide other legal services such as court representation and drafting of legal documents.
Contact us today to know more.