1. A deceased’s persons assets may not be distributed in accordance with their wishes
When a person dies without a valid will, it can be difficult to determine their true intentions regarding the distribution of their estate. A common situation arises where a person tells a friend or relative that they want to leave a specific gift to them (such as a property) upon their death but they did not make a will or any other testamentary document formalising their intentions. In these circumstances, the intended beneficiary is unlikely to receive the gift under intestacy laws.
Similarly, where a will exists but it is deemed invalid as it was not made in accordance with section 6 of the Succession Act 2006 (NSW), the Court may not recognise it. As a result, even clearly expressed intentions may not be upheld.
The deceased’s next of kin will be entitled to receive the entire estate. See our previous article on the Law of Intestacy to understand who is entitled to receive the deceased’s assets here.
This often gives rise to family conflict, which may require mediation or the Court’s involvement to resolve the dispute which can be costly, especially when barristers are required to provide expert advice.
2. Extensive searches for a will are required
Importantly, if a will cannot be easily located, you or your solicitor must undertake thorough and documented searches to determine whether a valid will exists before proceeding with an application for “Letters of Administration”. This application seeks the Court’s permission to distribute the estate in accordance with the rules of intestacy.
Enquiries are made with various institutions including the deceased’s former solicitor, NSW Law Society and NSW Trustee and Guardian. You or your solicitor will have to make an affidavit to this effect.
Notably, a failure to conduct adequate searches can expose the administrator to personal liability if a valid will is later discovered and any prior distributions of the estate may be challenged.
3. No executor appointed
Where no executor has been appointed, an eligible person must step forward to apply to be appointed as administrator of the estate. The administrator is responsible for collecting and managing the deceased’s assets and ensuring that any outstanding liabilities are paid.
In these circumstances, the estate will generally incur additional legal costs associated with preparing the documentation required for an application for a grant of Letters of Administration. This process can be both time-consuming and costly, particularly where the deceased’s family circumstances are complex or contested.
How we can help
Our experienced Wills and Estates team at Streeterlaw would be pleased to assist you to prepare your estate planning documents (so that you avoid the delays, costs and family conflict discussed above), make an application for letters of administration of a loved one’s estate or advise you in respect of estate litigation as a result of a loved one dying as an intestate.
Please contact us on (02) 8197 0105 or by email at contact@streeterlaw.com.au to discuss how we can help you.
