Intestacy

Losing a loved one is never easy, but it becomes even more complicated when there is no will or testament. This is when the rules of intestacy come into play. In NSW, the rules of intestacy dictate how a person’s assets will be distributed in the absence of a valid will. Here is where an intestacy lawyer can help.

At Stephen Wawn & Associates, our experienced team of intestacy lawyers can provide guidance and assistance to those dealing with the complexities of intestacy in NSW. Our aim is to ensure that your loved one’s estate is distributed in accordance with their wishes and the law.

What is Intestacy in NSW?

Intestacy refers to the situation where a person dies without leaving a valid will. When this happens, the rules of intestacy dictate how their estate will be distributed. In NSW, these rules are set out in the Succession Act 2006 (NSW).

Under the rules of intestacy, the estate will be distributed to the deceased person’s next of kin in a specific order. This order of distribution is known as the intestacy rules.

 

What are the Laws of Intestacy?

The intestacy rules in NSW provide a specific order of distribution of an estate in the absence of a valid will. The order of distribution is as follows:

• If the deceased person had a spouse or de facto partner at the time of their death, the entire estate will go to the spouse or de facto partner.

• If the deceased person did not have a spouse or de facto partner but had children, the entire estate will be divided equally among the children.

• If the deceased person did not have a spouse or de facto partner or children, the estate will go to the deceased person’s parents. If both parents are deceased, the estate will be divided equally among the deceased person’s siblings.

• If the deceased person did not have a spouse or de facto partner, children, parents or siblings, the estate will be distributed to the deceased person’s grandparents. 

• If there are no surviving grandparents, the estate will be divided equally among the deceased person’s aunts and uncles.

• If there are no surviving relatives, the estate will be given to the government.
  

 

Who Inherits on an Intestacy?

The order of distribution under the rules of intestacy is clear and unambiguous. However, there are certain situations where the distribution may not be straightforward. For example, if the deceased person had a blended family, this may complicate matters.

Under the intestacy rules, only the deceased person’s next of kin will inherit the estate. This means that stepchildren and foster children will not be entitled to a share of the estate unless they have been legally adopted by the deceased person.

 

Who Can Apply for Letters of Administration in an Intestacy?

When a person dies without a valid will, an application for the grant letters of administration on intestacy must be made to the Supreme Court of NSW. This is the legal process that appoints a person to administer the estate.

The person who applies for letters of administration is usually the deceased person’s next of kin. If there is more than one next of kin, the court will decide who is the most appropriate person to administer the estate.

 

Who Can Apply for Probate Intestacy?

Probate is the legal process of proving and registering a deceased person’s will. However, when a person dies without a will, probate is not necessary.

If the deceased person left a will but did not appoint an executor, an application for letters of administration with the will annexed must be made. This is the legal process that appoints a person to administer the estate.

 

How Long Does Intestacy Take?

Administering an intestacy in New South Wales can be a time-consuming process that can range from a few months to over a year, depending on several factors. 

The intricacy of the estate is one of the factors that can impact the duration of the process. If the estate is uncomplicated, with few assets and no conflicts among the beneficiaries, the process could be relatively swift. However, if the estate is intricate, with multiple assets and beneficiaries, conflicts between beneficiaries, or other complexities, the process may take longer to finalize.

In addition to the complexity of the estate, the efficiency of the executor or administrator can also affect the duration of the process. The executor or administrator bears the responsibility of managing the estate, ensuring that all debts are settled, and assets are allocated to the beneficiaries. If the executor or administrator is tardy in taking action or commits errors while managing the estate, the process could be further delayed.

Lastly, external factors like court delays or legal issues can also influence the duration of an intestacy. These delays can result in the process taking longer than expected, regardless of the estate’s intricacy or the executor’s efficiency.

 

Can Intestacy Rules be Challenged?

In some cases, it is possible to challenge the intestacy rules in NSW. However, this is a complex area of law and requires the assistance of a skilled lawyer with experience in this field to get more certainty.

There are several grounds on which intestacy rules can be challenged:

• One common reason is if a family member or other eligible person was left out of the distribution of the estate. This may occur if the deceased did not update their will to reflect a change in family circumstances, such as the birth of a child or the breakdown of a relationship.

• Another reason intestacy rules may be challenged is if the deceased did not have the mental capacity to make a will at the time it was created. This may occur if the person was suffering from a mental illness or cognitive impairment at the time the will was made.

• It is also possible to challenge the intestacy rules if there is evidence of undue influence or coercion on the part of a family member or other beneficiary. For example, if a beneficiary pressured the deceased into making a will that was not reflective of their true wishes, this may be grounds for challenging the distribution of the estate.

In order to challenge the intestacy rules, a formal application must be made to the Supreme Court of NSW. This application must be made within a certain timeframe, typically within 12 months of the date of death.

If you believe that you have grounds to challenge the intestacy rules in NSW, it is important to seek legal advice as soon as possible. Our expert lawyers have extensive experience in challenging intestacy and can provide you with the guidance and support you need to navigate this complex legal process.

Our intestacy lawyers at Stephen Wawn & Associates carry many years of experience in administering instestacy in NSW. We can guide you through the process and assist you with any complications that may arise. 

Contact us today for a free discussion on your matter and how we can assist you.

Stephen Wawn & Associates is committed to providing our clients with expert legal advice and representation in all areas of wills and estates law, including estate planning, probate, letters of administration, and asset protection.