My relative has died without leaving a will (that is, intestate). What do I need to do?

It is a commonly held belief that if you die without a Will, your assets automatically transfer to the State.  However, this is incorrect.  It is only if you die without a Will and without any eligible relatives that your assets will transfer to the State.

Who are eligible relatives?

Eligible relatives are those who are entitled to distribution of the deceased person’s estate.  Just who is entitled depends on the deceased person’s family situation at the time of death.

(a) spouse, but no children – the spouse is entitled to the entire estate (section 111);

(b) spouse and children who are children of the deceased person and the spouse – the spouse is entitled to the entire estate (section 112);

(c) spouse and children who are not those of the spouse – the spouse is entitled to the deceased person’s personal effects, the “statutory legacy” (currently $350,000), and 1/2 of the remainder of the estate (section 113).  The children receive the balance of the estate (section 127);

Different rules apply where there are multiple spouses (see sections 122–126).

(d) no spouse but children – the children are entitled to the whole of the estate (section 127) – if any child has died before the deceased person, leaving their own children, then those children are entitled to their parent’s share (section 127);

(e) no spouse and no children – the parents of the deceased person are entitled to the whole of the estate (section 128). If there is one surviving parent , the entitlement vests in the parent, and if both, it is shared equally;

(f) no spouse, no children and no parents – the brothers and sisters of the deceased person are entitled to the whole of the estate (section 129). If any brothers and sisters have died before the deceased person, leaving their own children, then allowance must be made in the division of the estate for the presumptive share of any such brother or sister;

(g) no spouse, no children, no parents, no brothers or sisters – the grandparents of the deceased person are entitled to the whole of the estate (section 130). If there is only one surviving grandparent, the entitlement vests in the grandparent, or if two or more survive the deceased person it vests in them equally; and

(h) no spouse, no children, no parents, no brothers or sisters, no grandparents – the brothers and sisters of each of the deceased person’s parents (the deceased persons aunts and uncles) are entitled to the whole of the estate (section 131). If there is only one surviving aunt or uncle of the deceased person’s the entitlement vests in the aunt or uncle. or if two or more survive the deceased person it vests in them equally.  If an aunt or uncle have died before the deceased person, leaving their own children who survived the deceased person, the child is entitled to the deceased parents presumptive share and if there are two or more children, they share equally.

If there are no eligible persons that fall within the above classes of relatives, then the estate will go to the State (section 136), unless someone who believes that they have an entitlement to the estate makes a claim.  Even if the Estate is to be left to relatives in accordance with the above intestacy laws, then an "eligible person" may still be able to make a claim under family provision laws if they are able to prove that inadequate provision was made for them.

By way of example, in 2015, a deceased man died without any living relatives, except for his ex-wife’s daughter (being the deceased’s ex-step-daughter).  The Court looked at the claimant’s financial circumstances (single mum, with 3 children, dependent on Centrelink payments) and decided to make provision for the ex-step-daughter’s future maintenance, education and advancement out of the estate by vesting the entire estate to her.

What is the process if there is no Will?

1. Do a thorough search of the Deceased’s personal papers.  Is there a copy of a Will, even an old Will that may not necessarily be the most current Will?  Can you find any evidence that the Deceased ever instructed a solicitor, even if it was just for the purchase of property – evidence could include letters or invoices from the solicitor firm?  A thorough search will also include placing an advertisement in the Law Society Journal (a monthly periodical magazine distributed to (most) solicitors in New South Wales) asking if anyone knows the whereabouts of the Will.

2. If no Will is located, then the closest living relative will need to apply to the Supreme Courtfor “Letters of Administration”, asking the Court to appoint the relative as the Administrator of the Estate, and authorising the relative to distribute the Estate in accordance with the list of “eligible relatives” as provided for in the Succession Act.

3. The Application for Letters of Administration will need to be accompanied by an Affidavit of the Applicant for Administration (that is, the Administrator) noting the following:

• the identity of all of the deceased’s eligible relatives, including a copy of all birth, marriage and death certificates;

• details of the searches undertaken to locate a Will or other document evidencing the Deceased’s intentions regarding their Estate; and

• a statement of the assets and liabilities of the Deceased.

The moral of the story?  Ensure that you have a valid Will so that your assets can be transferred to those family members and friends that you wish to provide for – not those family members that the State believes has an entitlement to your assets.