What if there is no will – intestacy
January 15, 2019
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.
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.
Who Can inherit
If you die without a will and do not leave any eligible relatives, your estate will pass to the State (Crown). However, the State does have the discretion to provide for any dependants of the deceased or any other person the deceased might reasonably have been expected to provide for if he or she had made a will. An application must be made to the Crown Solicitor by anyone wanting to claim. This situation is dealt with by Part 4.5 of the Succession Act 2006.
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).
Sources obtained from: State Library NSW and AustlII