Dying without a Will is known as dying intestate, and this is not an ideal situation but is far more common than you think. According to the rules of intestacy, your assets will be distributed to those next of kin. This may also involve surviving relatives who you may not necessarily wish to inherit your assets. The administration of an intestate estate requires a person to take responsibility to see it through as there has been no executor of the will appointed by the deceased.
For this reason, an application to the Supreme Court for “Letters of Administration” on intestacy needs to be made. This is the document which provides the court’s formal approval for someone to administer the deceased’s estate. The Court generally grants administration of an intestate estate to the individual or people with the greatest entitlement in the estate, such as the deceased’s spouse or children, or to the NSW Trustee & Guardian if need be. Take note that disputes may arise if there are multiple people who think they should be appointed as an administrator and such disputes will need to be sorted out before the administration of the estate can finally commence.
An appointed administrator’s role is that they are responsible for confirming relatives that are entitled to a share of the deceased person’s estate and this is according to entitlements under intestacy rules in the Succession Act 2006. Sometimes this is a simple process but there may be complications, or when overseas research is required, estates are referred to their genealogy team who will research and investigate to identify, locate and prove relatives who are entitled to an estate before it is distributed as required by law.
The distribution of an intestate estate is predetermined by a statutory formula which sets out who benefits from the estate and in what proportions, that is, the order of priority. Every state and territory in Australia has its own intestate laws and the distribution formula differs between jurisdictions.
Dying without a Will can create uncertainty and may result in disputes, delay and additional expenses. Therefore it is essential to consider creating your Will as soon as you can. If you would like to know more about estate planning, please feel free to contact one of our experienced estate planning lawyers at Frank Law on (02) 9688 6023.
This is not legal advice.