AUGUST ARTICLE
The Law of Intestacy – who inherits when there is no Will?
When a person dies without leaving a Will, it is said that they have died intestate. Interestingly, the consequence of dying intestate is that the wishes of the deceased are not considered when the estate is to be distributed, rather, the intestate estate is distributed according to the rules outlined in the Succession Act 2006 (NSW).
Read on to find out who is eligible to make an application for Letters of Administration in the hope that they may inherit the estate.
Who is eligible to inherit the estate?
The specific circumstances and family relationships of the deceased are important considerations when determining who is entitled to the whole of the intestate estate.
Generally, entitlement to the whole of the intestate estate is in the following order:
- Spouse – this includes a person married to the deceased or living in a domestic partnership with the deceased immediately before the deceased’s death.
- Spouse and Children – where a deceased leaves a spouse and children from a previous relationship, then the ex-spouse is entitled to the following: a) the intestate’s personal effects; and b) a statutory legacy (unsure what this means)which means a lump sum of money adjusted by the Consumer Price Index; and c) one-half of the remainder of the intestate estate – what happens to the other half? d) and the children from the previous relationship are entitled to the remaining one half of the intestate estate.
- Children – are entitled to the whole estate. If any child predeceases the deceased person, that child’s share is to be divided equally between any of their children who survived the deceased person.
- Parents – the parents of an intestate are entitled to the whole estate if there is no surviving spouse and no children.
- Brothers and Sisters – the brothers and sisters are entitled to the whole of the estate if the deceased person leaves no spouse, no child and no parent.
- Grandparents – entitled to the whole estate if there is no spouse, no child, no parent and no brothers or sisters.
- Aunts and uncles – entitled to the whole estate where the intestate leaves no spouse, no children, no parent, no brother or sister and no grandparents.
Who can make an application for Letters of Administration?
An application can be made by the “next of kin”, usually the spouse or children or another beneficiary. If there is no next of kin, the Court may grant Letters of Administration to the NSW Trustee and Guardian.
Dying intestate means that the deceased’s property has not been effectively dealt with and an Administrator is required to make an application to deal with the assets and distribute to those entitled.
Streeterlaw is sensitive to the needs of different families and appreciates the complexities involved. If you’re not sure where to start, let your next call be to Streeterlaw now to discuss the application process and how best to progress your loved one’s estate – (02) 88197 0105.
