A Will is a legal document that sets out what you want to happen after you die. It lets you:
- Put your wishes for your funeral in writing.
- Make provision for your pets.
- Set up trusts or life tenancies.
- Choose your own executor.
- Choose your beneficiaries and how much you wish to leave them.
Despite these benefits, there are many reasons why someone might die without having made a Will. Many people think they are too young, or just don’t want to contemplate their own death. Others don’t have any close family or friends to leave anything to.
Did you know that if you don’t have dependents or a binding beneficiary in place, your super might be paid into your estate instead?
So what happens if you don’t have a Will?
If you die without a Will, NSW intestacy law sets out who will inherit your estate. This may or may not be who you yourself would choose, and excludes people such as foster or step children, as well as in laws.
First Nations people often view family differently to Western views of family, and their relatives can apply to have their estate distributed according to traditional laws and customs.
Your family will need to prove they will be entitled to your estate before they can apply for Letters of Administration. This involves conducting searches to confirm what category of relative will inherit, that there is nobody more closely related who will be entitled, and that everyone has been accounted for.
This could be as simple as proving you have no spouse or de facto but you do have three children, or as difficult as proving there is nobody closer than cousins when your family is spread out around the world.
If your family has difficulty proving who is entitled, or if you have no known family, the Court can grant administration to NSW Trustee and Guardian. This allows your assets to be preserved and your debts to be paid at the same time searches are being carried out to confirm who is entitled to your estate.
How long will it take?
How quickly your estate can be paid to your family depends on how distantly related they are to you, as well as where how difficult the searches are.
If you and your family have lived all your lives in Australia, your administrator can contact the registry of Births, Deaths and Marriages for each state you and those in line to inherit have lived in. Most Australian registries offer a children search for legal matters and will provide a result certificate.
If you, your parents, or your grandparents were born overseas, conducting searches becomes more difficult. Overseas research can easily take several years, depending on the country or countries involved and how difficult it is to obtain documents or track down beneficiaries. One of the more accessible countries is the UK, where searches can be done through online indexes. Any possible matches then need to be ordered and checked to confirm that all children in each category are accounted for. On the other end of the spectrum, Canada has very strict privacy policies surrounding the release of documents, as do many states in America.
Most non-English speaking countries register births, deaths and marriages on a local level, with many cities broken into multiple districts. This is the equivalent of registering your child’s birth with your local council. If you or your family member moved around prior to migrating to Australia, the registry for each town you moved to will need to be contacted to search for any children who might be entitled.
The level of assistance any given registry office will provide can change drastically from town to town. Some prefer to deal with local researchers which can become expensive very quickly. It also comes with a level of risk, as there is little oversight or regulation of those who offer their services.
Missing evidence
In 2003, it was estimated that only 3 per cent of births in Afghanistan were registered. Our closest neighbour, Papua New Guinea, only registered 13 per cent of births in 2018.
There are many countries where birth registration is new or has limited uptake. In other countries, records have been destroyed through conflict. Obtaining records from these countries can be a difficult prospect, and could mean having to access religious records, government archives, or migration documents to make up the shortfall. In circumstances where these records aren’t available, the Court might be willing to order the estate be distributed based on the evidence that could be obtained.
NSW Trustee and Guardian is currently administering over 2000 intestate estates, 745 of which involve overseas research by our in-house Genealogy unit.
For enquiries about administering an intestate estate, please contact clientestablishment@tag.nsw.gov.au.
To make an enquiry about our Will making service, please visit our website.
