Deceased Estates in NSW: What Happens When Someone Dies Without a Will?
When a loved one passes away, families are often left grieving and overwhelmed—not only emotionally but legally, too. One of the most common legal issues that arises is dealing with a deceased estate, especially when the person has died without a valid Will. In legal terms, this is known as dying intestate. If you’re navigating this process in New South Wales (NSW), understanding your rights, obligations, and the legal steps ahead is crucial.
This article will walk you through everything you need to know about deceased estates in NSW, focusing on what happens when someone dies without a Will, who can manage the estate, how assets are distributed, and why professional legal help is essential during this challenging time.
What Is a Deceased Estate?
A deceased estate refers to all the property, assets, liabilities, and entitlements a person leaves behind when they pass away. This may include:
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Real estate (houses, land, units)
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Bank accounts
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Superannuation
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Shares and investments
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Personal belongings (cars, jewellery, artwork)
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Debts (such as credit cards or loans)
If the person left a valid Will, their estate is distributed according to their wishes. But if they die without a Will, NSW law outlines how their estate should be handled and who is entitled to inherit.
⚖️ What Does It Mean to Die Intestate in NSW?
A person is considered to have died intestate if:
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They never made a Will, or
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Their Will is found to be invalid, or
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Their Will does not deal with all of their estate
In such cases, the Succession Act 2006 (NSW) dictates how the estate is distributed. These laws are designed to reflect what the average person might have wanted, but they often don’t align with the actual wishes of the deceased.
Who Inherits When There Is No Will?
The distribution of an intestate estate in NSW follows a hierarchical structure:
1. Spouse or De Facto Partner
If the deceased had a spouse or de facto partner (including same-sex partners), they are usually the primary beneficiary.
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If there are no children from another relationship, the spouse receives the entire estate.
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If there are children from a previous relationship, the estate is divided between the spouse and those children.
2. Children
If there is no surviving spouse, the children inherit the estate equally. If a child has already passed away but left children (the deceased’s grandchildren), those grandchildren inherit their parent’s share.
3. Parents
If there is no spouse or children, the deceased’s parents inherit the estate.
4. Siblings
If the parents are deceased, the estate goes to the siblings of the deceased. If a sibling is deceased, their children (nieces/nephews) may inherit.
5. Extended Family
If no immediate family members exist, the estate may pass to grandparents, aunts and uncles, or cousins.
6. The State of NSW
If no eligible relatives can be found, the estate is claimed by the NSW Government under a process called “bona vacantia”.
Important: Intestacy law does not provide for close friends, carers, or unmarried partners unless they can prove a de facto relationship under NSW law.
What Are Letters of Administration?
When someone dies with a Will, the executor applies for probate to manage the estate. But in intestacy cases, there is no Will or named executor, so someone must apply for Letters of Administration.
Who Can Apply?
Usually, the person with the greatest entitlement under intestacy (e.g. spouse or child) applies to the Supreme Court of NSW to become the estate administrator.
What Does the Administrator Do?
The administrator’s role is similar to that of an executor and includes:
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Locating and valuing all assets
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Paying debts and taxes
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Distributing the estate according to NSW intestacy laws
The process can take several months or more, especially if the estate is complex or if disputes arise.
Time Limits and Practical Steps
How Soon Should You Apply?
There is no strict deadline, but it’s best to apply for Letters of Administration within 6 months of death to avoid delays.
Step-by-Step Process:
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Confirm there is no Will after searching thoroughly
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Determine who is eligible to apply
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Gather documents, including death certificate and asset details
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File an application for Letters of Administration with the Supreme Court
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Administer the estate as per intestacy rules
What Happens to Debts in a Deceased Estate?
A deceased person’s debts do not automatically disappear. Before any distribution:
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All funeral costs, taxes, and debts must be paid from the estate.
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Only after settling liabilities can the remaining assets be distributed.
If the debts exceed the assets, the estate is declared insolvent, and beneficiaries may not receive anything.
⚠️ Common Disputes in Intestate Estates
When no Will is present, legal disputes are more likely. Common issues include:
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Disagreements over who should administer the estate
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Arguments about whether someone was in a de facto relationship
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Claims from stepchildren or estranged family members
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Missing or hard-to-find beneficiaries
In some cases, people can make a family provision claim under the Succession Act if they believe they were unfairly left out.
⚖️ Why You Should Consult a Deceased Estate Lawyer
Dealing with intestacy is complex, time-consuming, and emotionally taxing. A lawyer can:
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Help you apply for Letters of Administration
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Advise you on your legal rights and obligations
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Assist in resolving disputes or challenging claims
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Ensure the estate is administered lawfully and efficiently
Having a legal professional involved can prevent costly mistakes and ease the burden during a stressful time.
Real-Life Scenario (Case Study)
Scenario:
Mark, aged 68, passed away in Sydney without a Will. He was separated but not divorced and had two adult children from his first marriage and a partner of 15 years. His estate included a house, superannuation, and savings.
Without a Will:
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His long-term partner had to prove they were in a de facto relationship to inherit.
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The children argued over their entitlement.
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Legal delays occurred due to competing claims and missing documentation.
Eventually, the estate was divided between the partner and the children, but only after 18 months of legal proceedings and emotional stress.
✍️ Avoiding This Situation: Make a Will Today
To protect your loved ones and avoid uncertainty:
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Create a valid Will that clearly outlines your wishes
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Appoint a trustworthy executor
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Review your Will regularly
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Speak to a lawyer for tailored advice
Final Thoughts: Get Expert Guidance for Deceased Estates in NSW
If someone close to you has died without a Will, you may be facing a long and complex legal road. Understanding your responsibilities under NSW law is the first step—but you don’t have to go through it alone.
At Lyon Legal Services, we specialise in deceased estate matters, intestacy, and estate administration in NSW. Whether you’re applying for Letters of Administration, managing a complicated estate, or facing a legal dispute, we can help you every step of the way.
Need help with a deceased estate in NSW?
Contact us today for confidential, compassionate, and expert legal advice.
