Often people have the intention to get a will prepared and it’s on their list of things to do when they have time, but for whatever reason, just never get around to it. Then something unexpected happens and it’s too late. Luckily our legislators realized that there could be situations where people pass away without making a will, known as intestacy, and in NSW, the Succession Act, dictates how an estate is administered if someone passes away without a will.
Many people are not aware that the legislation automatically assigns the NSW Trustee & Guardian as the administrator of the estate unless a person entitled to some or all or the estate under the intestacy provisions applies to the Supreme Court to be appointed instead. There are some basic things you need to be able to prove to the courts satisfaction in order to seek a grant of Letters of Administration. The first is that you have made reasonable attempts to locate a will and have been unable to locate one. The second is that any other person entitled to the estate under the intestacy provisions consents to you being appointed as the administrator. If some of the persons entitled are not able to provide that consent due to incapacity (eg. a spouse with dementia) or due to their age (eg. a child), or just can’t agree on the appropriate person to be appointed as administrator, this can create difficulties.
The legislation also dictates the order of the person’s entitled to a share in the deceased’s estate, regardless of the status of their relationship or contact with the deceased person in the period leading up to their death. For all those people who have been separated for 10 years but haven’t filed for a divorce, please take note! In descending order the list includes spouses, persons in a domestic partnership, children, parents, siblings, grandparents, and aunts and uncles. Relationships need to be able to be verified with birth and marriage certificates, affidavits or other evidence. If a person dies leaving no persons entitled under intestacy, the State is then entitled to the whole of the estate. Yes, that rumour is partially true, the government does get your money if you die without a will, but only in very limited circumstances! They do however have the discretion to consider other dependents or any other person who has a just and moral claim on the estate.
Why am I telling you this? To encourage you to not put preparing a will in the “too hard” basket. Making a will is easy and a lot less costly for your loved ones than trying to justify their relationship to you and administer an intestate estate. KC Hilton, WNB Legal