No Will? Why not refer it to NSW Trustee and Guardian?
NSW Trustee and Guardian (formerly Public Trustee NSW) has over 95 years of experience in the administration of estates. As part of our independent and reliable trustee services, we currently administer around 2,000 estates a year. We also administer estates when someone else is appointed executor but asks the NSW Trustee and Guardian to take over their role, or where someone dies without a valid Will (Intestate).
As the largest administrator of intestate estates in NSW we find that individuals and legal practitioners often seek to refer intestacies to us, as our administration processes are well practised and efficient. With new intestacy laws about to be introduced into NSW it is important that intestate estates be administered by professionals who are well versed in these changes and know what they are doing.
For those estates where family members are widely scattered or are not close our genealogy section is highly successful in tracing relatives and has tracked down over 400 beneficiaries in the past year.
If you are interested in referring an intestacy matter to NSW Trustee and Guardian please click here
Intestacy – Frequently Asked Questions
What if I die without a Will?
How is an intestate estate dealt with?
If I don’t have a Will who inherits my assets?
What if I die without a Will?
If you die without a Will you are said to die intestate. The word “intestate” is derived from the Latin word “intestatus” meaning a person who dies without a Will. If you die with a fully valid Will you are said to die testate.
Intestacy may occur not only where a person fails to make a Will but also for other reasons such as:
- the Will fails to properly dispose of all their assets
- the Will is not valid because it has not been signed and witnessed according to the law
- the person did not have mental capacity to make a Will
- the Will has been poorly drafted and the legal rules of construction have not been followed.
Sometimes a person may die partly testate and partly intestate. This occurs where part of the Will is valid but part is invalid. This may result in even more inconvenience, delay and expense than administering a full intestate estate.
How is an intestate estate dealt with?
Looking after intestate matters can be complicated. Firstly a suitable administrator must be appointed by the Supreme Court of NSW. This may not be the person who you would have chosen if a Will was made. The administrator’s duties involve arranging the funeral, collecting assets, and distributing them after paying any debts and taxes. The administrator must establish the family tree using certificate evidence which may be an expensive and time-consuming task depending on who are the next of kin or if they live overseas.
Additional problems may arise where the child is a minor or incapable person as your next of kin. Here the Court may require the administrator to obtain an administration bond. An administration bond is a guarantee by a third party, often an insurance company, to make good any loss should the appointed administrator fail to properly administer the estate. The bond is usually equal to the value of the estate being administered.
The law exempts the NSW Trustee and Guardian when acting as an administrator of an intestate estate from having to obtain an administration bond.
If I don’t have a Will who inherits my assets?
Your assets will be distributed according to a pre-determined formula with certain family members receiving a defined percentage of your assets despite what you may have wished.
Legislation is enacted in each state and territory of Australia defining who are a person’s next of kin and what portion of the estate they inherit. The legislation of each state and territory is slightly different. The current law in NSW provides that the assets will be distributed as set out below - remember the law will change soon.
(‘Issue’ means children, grandchildren, great grandchildren and beyond. If one or more children predecease but leave their own children, these surviving children will inherit their parent’s share of your assets).
- if you die leaving a spouse but no issue your spouse inherits
- if you die leaving a spouse and issue BUT your assets are worth less than $200,000 your spouse inherits everything
- if you die leaving a spouse and issue AND your assets are worth more than $200,000 your spouse inherits $200,000, household contents, and one-half of the rest of your assets. The other one-half passes to issue
- if only issue survive they inherit everything
- if only parents survive they will inherit
- if only siblings who share both parents in common survive they will inherit. If any of them died before their parents, their issue will inherit that sibling’s share of the assets
- if only half siblings survive (i.e. who share only one parent) they will inherit or their issue
- if only grandparents survive they inherit
- uncles and aunts are next and if no uncles and aunts who are brothers or sisters of the whole blood of your parent, then to uncles and aunts who are brothers or sisters of the half blood of your parent
- if none of the above are still surviving or they have all died before you, only then do your assets go to the NSW State Government.
De facto spouses (which include same sex relationships) may inherit depending on the existence or non-existence of a spouse and issue and the duration of the de facto relationship. Whatever the circumstances, where a de facto partner survives, affidavit evidence is usually required as part of the application for a grant of administration in order to prove the relationship.
If you have friends or charities or a pet to whom you would like to leave a gift, then you need to have this set out in a Will. You cannot rely on the laws of intestacy to provide.
Making a Will is also important for those people who, because of cultural or religious reasons, would not wish the above formula to apply to their estates.
The laws of intestacy are a fail-safe only and may not be adequate to cover everyone, including family and loved ones. You can see why a Will is such an important document.