Losing a loved one is an incredibly difficult experience. When someone dies without a Will, the emotional stress can be made even harder by uncertainty about what happens to their assets and how their estate will be managed.
In Australia, when a person dies without a valid Will, they are said to have died intestate. This means there are no legally binding instructions explaining how they wanted their assets to be distributed after their death.
Instead, the estate is distributed according to intestacy laws. These laws determine who may inherit from the estate, but the outcome may not reflect the wishes of the person who has passed away.
For family members left behind, administering an intestate estate can involve additional paperwork, court applications and delays. Understanding what happens when someone dies without a Will can help make the process easier to navigate during an already challenging time.
What Happens When Someone Dies Without a Will?
When someone dies without a Will, their estate must be managed and distributed according to the intestacy laws that apply in the relevant state or territory.
In New South Wales, intestate estates are dealt with under the Succession Act 2006 (NSW).
Because there is no Will setting out the deceased person’s wishes, the law determines:
- Who is entitled to administer the estate;
- Who may inherit from the estate; and
- How the assets should be distributed.
This can create difficulties where there are complicated family circumstances, such as blended families, estranged relatives or disputes between potential beneficiaries.
The First Steps After Someone Dies Without a Will
The first step in dealing with an intestate estate is obtaining advice from an experienced wills and estates lawyer.
An estate lawyer can explain the legal process, advise who may be entitled to administer the estate and help ensure the necessary steps are completed correctly.
The estate will need to be identified and valued. This includes locating assets such as:
- Bank accounts and investments;
- Real estate and property;
- Vehicles and personal belongings;
- Business interests; and
- Other financial assets.
Any outstanding debts or liabilities must also be identified and paid before the remaining assets can be distributed.
Who Inherits If There Is No Will?
The rules of intestacy determine who receives an inheritance when someone dies without a Will.
Generally, priority is given to close family members, including:
- Spouse or de facto partner: A surviving spouse or partner may be entitled to all or part of the estate depending on the circumstances.
- Children: Children may inherit in certain circumstances, particularly where the deceased had children from another relationship.
- Other relatives: If there is no spouse or children, relatives such as parents, siblings or more distant family members may inherit.
- The government: If no eligible relatives can be located, the estate may ultimately pass to the State.
Because intestacy laws follow a set formula, they do not allow a person to choose who receives their assets. This is one of the key reasons why preparing a valid Will is so important.
Applying for Letters of Administration
When a person dies without a Will, there is no executor appointed to manage their estate.
Instead, an eligible person may need to apply to the Court for Letters of Administration. This allows them to become the administrator of the estate and take responsibility for managing the estate administration process.
The administrator may need to:
- Identify and protect estate assets;
- Apply for Letters of Administration;
- Pay outstanding debts and expenses;
- Manage legal requirements; and
- Distribute assets according to intestacy laws.
The process can become more complicated if family members disagree about who should administer the estate or how assets should be handled.
Are All Assets Included in an Intestate Estate?
Not every asset automatically forms part of an intestate estate.
Some assets may be dealt with separately, including:
- Superannuation: Superannuation benefits may be paid directly to a nominated beneficiary or another eligible person depending on the circumstances.
- Life insurance: Life insurance proceeds may be distributed according to the policy arrangements rather than through the estate.
- Jointly owned property: Certain jointly owned assets may pass directly to the surviving owner.
- Digital assets: Online accounts, cryptocurrency and other digital assets may create difficulties if access details and instructions have not been recorded.
Proper estate planning can help ensure these assets are considered and managed appropriately.
Why Estate Planning Is Important
The best way to avoid the uncertainty of intestacy is to prepare a valid Will as part of a broader estate plan.
A carefully prepared Will allows you to:
- Choose who receives your assets;
- Appoint a trusted executor;
- Provide for your loved ones;
- Reduce the risk of disputes; and
- Make the administration of your estate easier.
Estate planning involves more than preparing a Will. It may also include reviewing:
- Superannuation beneficiary nominations;
- Powers of attorney;
- Enduring guardianship arrangements;
- Business succession planning; and
- Trust structures.
Taking steps to plan ahead can provide certainty for your family and reduce the emotional and financial burden after your death.
How Our Wills and Estates Lawyers Can Help
Dealing with an estate where someone has died without a Will can be complex and overwhelming, particularly while grieving the loss of a loved one.
Our experienced wills and estates lawyers can assist with:
- Applying for Letters of Administration;
- Understanding inheritance rights;
- Administering estates without a Will;
- Preparing Wills and estate plans for the future.
Obtaining legal advice early can help avoid unnecessary delays and ensure the estate is handled correctly.
Get Advice About an Estate Without a Will
If someone close to you has died without a Will, our team can help you understand the next steps and your legal options.
Contact Somerville Laundry Lomax to arrange a consultation with our experienced wills and estates lawyers.
This article provides general information only and is not intended to be legal advice. Estate planning and intestacy laws can vary depending on your circumstances and location. You should obtain professional legal advice before taking any action.