Intestacy may occur in case you die without a Will or the Will fails to properly dispose all the assets of the estate or the Will is invalid because it has not been signed and witnessed as per the legal requirements.
Intestacy may occur if the person making the Will did not have the mental capacity to make the Will or it was poorly drafted without following proper legal rules of construction. In cases when only a part of the Will is held to be valid, it creates a partial intestacy.
The succession laws in every State and Territory are different. Generally in every State, the assets are distributed according to a pre-determined formula with certain family members receiving a defined percentage of the assets.
The Succession Act 2006 (New South Wales Consolidated Acts) (the Act) provides the Order and the pre-decided formula in which the eligible relatives of an intestate inherit the deceased’s estate. In case there are no eligible relatives of the intestate, the State takes over the estate. Section 103 of the Act provides a person is entitled to his/her share from the deceased’s estate only after the funeral, administration expenses and liabilities of the deceased have been paid off.
In addition to the advice below, Owen Hodge’s Sydney-based estate lawyers can help you deal with case where intestacy occurs or assist with estate planning to avoid it becoming an issue.
The NSW laws were amended in 2010 and the new norms are applicable to the distribution of the estate of the people who had died intestate on or after 1 March 2010. The requirement of the ‘30 days survivorship’ period which requires that a relative of an intestate needs to survive the deceased by 30 days has been newly added.
The meaning of the term ‘spouse’ have been expanded to include the ‘de facto’ partners for 2 or more years or with whom the intestate may have had a child. The Act now recognises multiple spouses for the purposes of succession, where the deceased might have had a married partner and another de facto partner. The partner may be of the same or opposite sex. The new law also makes provision for distribution of the estate of an indigenous person as per his or her own customs.
Letters of Administration
In case anybody dies intestate, any of the eligible relatives can apply for obtaining a ‘Letters of Administration’ which would grant the authority to the person to distribute the assets as per the law.
The Affidavit filed by the person seeking to be an administrator must identify the deceased’s eligible relatives by supplying the necessary birth, marriage and death certificates, should list the searches made for a Will or other document that sets out the deceased person’s testamentary intentions, provide a list of the assets and liabilities of the deceased and attach the death certificate.
The person should also publish a notice of intended application online at least 14 days before the day you intend to fill the application and from 21 January 2013 onwards this notice of intention to apply must be made on the Supreme Court Online Registry website.
The administrator’s duties involve arranging the funeral of the deceased, collecting the assets and distributing them after paying any debts and taxes. The administrator must establish the family tree using certified evidence which is an expensive and time consuming task. The joint property owned by the deceased with another person is not considered as a part of the estate of the deceased.
In case of a minor being an inheritor of an intestate estate, the Court may Order the administrator to obtain an administration bond which is a guarantee by a third party like an insurance company, to make good any loss in case the administrator fails to properly administer the estate. The bond is usually equal to the value of the estate. The NSW Trustee and Guardian are exempt from obtaining the bond when acting as an administrator of an intestate estate.
Apart from the spouse or children of the deceased, the parents, siblings, grandparents, aunts and uncles and first cousins are also entitled for a share out of the deceased’s estate.
Challenging the Rules
The distribution of the assets of an intestate estate may be challenged by many people including dependents of the intestate such as people who may have a just or moral claim or any organisation or person for whom the deceased was reasonably expected to have made a provision for. In case the deceased was associated with charity, the charity is also entitled to a claim on the deceased’s estate.
It is always safer to make a Will so that the people whom you think are entitled to your estate get their due share. However, if you are acting as an administrator or seek to challenge the distribution of an intestate’s estate, please feel free to contact our team of expert estate lawyers at Sydney’s Owen Hodge Lawyers for guidance.