What if I unexpectedly die without a will?

For younger persons the thought of death may not have crossed our minds as death seems far from us. But unexpected things happen, accidents may occur, sudden health issues or a pandemic may hit, that is why they are unexpected.

Should you die intestate (without leaving a will), someone will need to apply to the Supreme Court of New South Wales for a grant of letters of administration. The grant is a legal document issued by the Court for the applicant administrator to deal with your assets. Asset holders may not release your assets without a grant.

The application may be a lengthy process because of the following issues:

1. Who should apply as the applicant?

Only a person who is entitled to the intestate estate can apply for letters of administration, that is the next-of-kin according to the Succession Act 2006 (NSW). Eligible persons must survive the deceased by 30 days to be entitled and provide evidence of their relationship with the deceased, such as marriage certificates and birth certificates.

The law determines that your assets shall pass to your:

(a) Spouse including de-facto partner, same sex partner and multiple spouses;
(b) Children including children of another relationship and adopted children, but not step children. Grandchildren and great-grandchildren may be entitled where children of the deceased died before the deceased;
(c) Parents;
(d) Brothers and sisters;
(e) Grandparents;
(f) Aunts and uncles, and first cousins may be entitled where aunts and uncles died before the deceased;

in that order upon the exhaustion of the previous category, and if none of the above, then to the State.

It will not matter if you do not have a good relationship with your next-of-kin and never intended to leave any of your assets to them, the law does not take this into account if you did not leave a will.

2. The applicant needs to prove to the Court that a will did not exist.

Searches for a will are required to be made with the following:-

(a) The deceased’s personal papers at his home(s);
(b) The deceased’s previous solicitors;
(c) Banks where the deceased held bank accounts; and
(d) The New South Wales Trustee and Guardian.

The applicant should also check with other family members and the deceased’s close friends as the deceased may have mentioned to them about making a will, and any safe deposit boxes.

3. Gathering information about the deceased’s assets.

The applicant may not be familiar with the financial affairs of the deceased and the deceased may not have kept organised records so it may take some time to gather this information which is required to be disclosed to the Court.

Estate planning does not need to be complicated but dealing with an intestate estate may be complex.

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