Probate & Disputed Estates

What happens if a loved one passes away without a will?

Passing away without a will has proven to be quite common in Australia. But what happens if a loved one passes away without a will? In a recent study conducted by ASIC, research indicates that almost half of the population have not written a will nor anything with testamentary intentions. This is a worrying factor for families and loved ones.  As it may lead them to believe that they are not entitled to the estate or any assets.

Applying for Letters of Administration if a person dies without a Will.

The term for an individual passing away without a will is commonly known as ‘intestacy’. Meaning that the deceased estate automatically passes to family members or relatives in accordance with predetermined regulations. The significant issue in dealing with deceased estates that are intestate is that the estate will not necessarily pass to beneficiaries that the deceased would have intended.

In other words, when the individual is deemed to have passed away intestate in NSW, their assets will be distributed according to the layout that is outlined within Chapter 4 of the Succession Act 2006. This is different from the process if a loved one passes away leaving a will.

Moreover, if there are no spouse or children then the estate will pass to other relatives in the following order:

  • Parents
  • Siblings
  • Grandparents
  • Aunts and uncles
  • First cousins

Who manages the estate?

In terms of who manages the estate, these cases are circumstantial. However, the matter of who gets to administer the estate or assets will vary depending on the following. The spouse, former spouses, and children, and/or siblings the deceased had during their lifespan. Also who is willing to volunteer to take on this task.

A person may make a claim against the deceased estate. If the claimant is identified as an eligible person under the relevant Act, then they may succeed in their claim provided that the claimant proves he or she has a financial need. The claim needs to also be a dependent.

If none of the family members outlined can be found to inherit the deceased’s estate, then the assets are very likely to go to the state government.

What is a Letter of Administration & What is the process?

A grant of Letters of Administration is a legal document issued by the Court providing the administrator of the estate with the discretion and authority to manage and distribute the deceased’s assets. There are two types of applications for Letters of Administration:

  • Application for Letters of Administration – the deceased died without leaving a will.
  • Letters of Administration with the Will annexed – the deceased left a will but there is no executor available to apply for a grant of probate. (determined by a registrar on the papers in chambers, meaning there is no hearing in court for the matter).

Moreover, Letters of Administration are usually made when a will is not left or for other technical reasons. This makes the Court careful to ensure that the person to whom administration is granted is someone who has interest in the estate as well as satisfies the eligibility requirement mentioned earlier.

If the deceased person owned property or land or some other significant asset (bank accounts, shares, superannuation), the claimant will need to apply for a Letter of Administration.

What is required? 

When applying for a Letter of Administration the court will require evidence of convincing material:

  • Search for a will (even if non-existent, the applicant must carry out a thorough search to ensure that it is an intestate death, leading on to the next requirements in the Letter of Administration process).
  • Obtain a death certificate.
  • Determine who is entitled under intestacy and who should apply.
  • Advertise a notice of your intention to apply for grant of Letters of Administration.
  • Complete and file the forms (provided within the Supreme Court Rules, Succession Act & Probate and Administration Act).

All applications must be filed at the Supreme Court of NSW Registry, either in person or by post. There may be a filing fee which could depend on the gross value of the estate, it should be noted that applications will not be processed until the filing fee is paid.

How long does this process usually take?

When applying for a Letter of Administration, it generally takes at least three to eight weeks to obtain Letters of Administration is granted by the Supreme Court. It may take longer depending on the circumstances as it tends to be exceeded for Letters of Administration and complex grants.

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The content of this article is intended to provide a general guide to the subject matter. Professional advice should be sought about your specific circumstances.

Ahmad Al Sarray

Principal Solicitor

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Ahmad Al Sarray

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