If there is no will - intestacy
If no will is found, it is usually presumed the deceased died intestate, that is, without a will.
If you do die without a will (known as 'intestate'), your estate does not automatically pass to the State (Crown), as is often assumed. The Succession Act 2006 (NSW) sets out the order in which your eligible relatives will inherit your estate. It is only if you die without eligible relatives that your estate will pass to the State (see Who is eligible to inherit if there is no will).
It is always better to make a will - that way you make your own decisions about who will inherit your estate, rather than having the intestacy rules apply. You can choose to benefit your favourite charity, a friend or a remote relative who may not be included under the intestacy rules. In addition, you will save your family and loved ones a great deal of administrative work, anxiety and pain if you have left a clear will, rather than making them go through the process of establishing themselves as eligible relatives.
Funeral and administration expenses
Section 103 of the Succession Act makes it clear any entitlement is after funeral, administration expenses and liabilities have been paid.
If the deceased owned property with someone else
If the deceased owned property as a joint tenant, the property passes automatically to the surviving tenant regardless of a will or the intestacy rules. This joint property is not included as part of the deceased's estate.
However, if the deceased had held property as a tenant in common (that is, if property was co-owned through having a share in it), the share would pass to their beneficiaries as part of the estate.
Procedure when there is no will
If an exhaustive search has been made and a will has not been found, it is usually presumed that the deceased died intestate. In that case, a grant of Letters of Administration will be applied for, if necessary, instead of probate. The estate of the deceased will then pass to their eligible relatives as specified by the Succession Act 2006 (NSW).
Applying for a grant of Letters of Administration
Letters of Administration are a court order that allow an estate to be administered when there is no will, or when the will does not appoint an executor. After the proper inquiries show that no will has been left, one of the eligible relatives can apply for Letters of Administration. This involves steps similar to those required for a grant of probate (see Probate and executor's duties).
The following documents will need to be filed at the Supreme Court in addition to those required for Probate:
- an affidavit stating that the deceased was not living in a de facto relationship, unless the application is being made by the de facto spouse (which can include a same-sex partner) in which case a detailed affidavit is required confirming the applicant is a de facto spouse.
- an affidavit of applicant for administration (instead of affidavit of executor) (see below)
- an administration bond, if required (see below).
Affidavit of applicant for administration
The affidavit of applicant for administration must:
- identify the deceased's eligible relatives by supplying the necessary birth, marriage and death certificates;
- list the searches made for a will or other document that sets out the deceased person's testamentary intentions.
- list the assets and liabilities of the deceased.
- have attached the death certificate and published a notice of intended application online at least 14 days before the day you intend filing the application. Prior to 21 January 2013 you must insert an advertisement in a newspaper 14 days before the application is made. From 21 January 2013 this notice of intention to apply must be made on the Supreme Court Online Registry website (see Probate and duties of executors for details). The Supreme Court website has Filing instructions information.
Before December 2001, the applicant had to lodge an administration bond securing the entitlements of next of kin who were not parties to the application and had not consented to it. This requirement did not apply when the application was made by all the beneficiaries in the estate.
Since December 2001, an adult beneficiary who is not a party to the application for administration need only be served with notice of it. In some cases, a bond may be required, for example to secure the entitlements of a beneficiary under 18. In such a case, it is best to consult a lawyer.
Unfortunately, at the time of writing, no insurance company provides these bonds. There are alternatives: for example, a surety (that is, a personal guarantee). If there is a need for such a bond, the issue should be discussed with a lawyer.
Rest Assured: a Legal Guide to Wills, Estates and Funerals in New South Wales, 5th edition, by Rosemary Long and Trudy Coffey. Published by The Federation Press, 2011.
Online edition published by the Legal Information Access Centre, State Library of NSW. The online version has been updated to reflect changes to the law. Last updated October 2014.
© Library Council of New South Wales, 2011.