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Intestate Estates In Sydney

When someone passes away in Sydney, and no one can find a will, there is a presumption that the deceased died intestate (that is, without making a will). An intestate estate does not pass to the government except in very limited circumstances. Instead, the Succession Act 2006 sets out provision for the deceased’s closest relatives to inherit the intestate estate. This article explores the consequences of dying intestate in Sydney.

Probating An Intestate Estate In Sydney

If someone dies without a will in Sydney, an appropriate person (typically the spouse or child of the intestate deceased) needs to apply to the Supreme Court of New South Wales for Letters of Administration. This probate grant authorises the applicant to administrate the deceased estate and distribute the deceased’s assets to the rightful beneficiaries.

Affidavit of Applicant

The applicant must include an affidavit with their application for Letters of Administration. The Affidavit of Applicant should provide details of the deceased’s relatives and supply relevant birth, death and marriage certificates. If the deceased was in a de facto relationship at the time of death, the affidavit needs to provide sufficient detail to establish the relationship before the court. The applicant should also include particulars about the search for the will and proof that they published a Notice of Intention to Apply.

Administrative Bonds

It may also be necessary to lodge an administration bond to secure the entitlements of the beneficiaries of the estate. This bond is not necessary when all possible beneficiaries have been notified of the application. However, if a possible beneficiary is a child, then a bond may be necessary to safeguard the minor’s interests.

Who Inherits From An Intestate Estate In Sydney?

Intestacy rules in Sydney stipulate an order of succession for who can inherit from the deceased estate. Eligible beneficiaries are divided into two categories – spouses and other close relatives. In Sydney, a current spouse or de facto partner has priority to inherit the assets of their deceased partner. Even if there are children from the current relationship, the spouse will still inherit the entire estate. If the deceased had multiple spouses (for instance, a husband or wife and a current de facto partner) then both partners inherit from the estate.

The priority of the spouse is only overcome if the deceased had children from a previous relationship and the estate is of a substantial size. Specifically, the current spouse in this situation is entitled to the personal effects of the deceased plus a CPI adjusted statutory legacy of $350,000 (including interest if the legacy is not transferred in the year after death) and half of the remainder of the estate. The children of the deceased inherit the other half of the residual estate, if any exists.

Distribution To Other Relatives

In the event that the deceased was not married or in a bona fide domestic relationship when they passed away, the order of inheritance privileges other relatives, starting with any children. When there are no children eligible to inherit, then the order of inheritance moves to the deceased’s parents, brothers and sisters, and then on to grandparents, aunts and uncles and cousins. The Supreme Court will attempt to locate an eligible beneficiary from each category before moving on to the next category until they find a beneficiary or the process is exhausted.

A child of a deceased includes an adopted child and any biological child, regardless of whether the child’s parents ever married. If a child of the deceased passes away before their parent, then any of their issue can inherit the deceased child’s entitlement in their place. This eligibility extends down through the generations, so that if the deceased’s grandchild has also passed away but has left a great-grandchild, then they will inherit the original child’s portion. On the other hand, if the deceased’s child passes away without issue, then the portion is distributed to the deceased’s other children. 

The estate only ultimately passes to the Crown if the deceased died without any eligible relatives in any of the categories. Even if there are no eligible relatives, the State has discretion to make provision for anyone who was dependent on the deceased or who might reasonably have been expected to inherit from the deceased. Claimants in Sydney can apply to the Crown Solicitor for an assessment of their eligibility to inherit from the intestate estate. The Crown will generally make provision for a dependent in preference to the State receiving the whole estate.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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