About intestate estate
When a person dies without a Will, it is referred to as dying ‘intestate’. If this happens, an application is made to the Supreme Court for ‘Letters of Administration’. This document is the court’s formal approval for an appointed person, known as the administrator, to administer the deceased person’s estate.
How to administer an estate where the deceased left no Will
Applying to administer a deceased estate with no Will
The Court generally grants administration of an intestate estate to the person or people with the greatest entitlement in the estate (for example, a a spouse or children) or to NSW Trustee and Guardian.
The applicant for administration is responsible for confirming relatives who are entitled to a share of a person’s estate, in accordance with the intestacy rules in the Succession Act 2006 (NSW).
Learn more about how NSW Trustee and Guardian administer an intestate estate.
Relatives are grouped into categories and are dealt with in the order specified by the Succession Act.
The administrator will need to finish dealing with one category of relatives completely before moving on to the next one. When a category is found where someone is eligible, the process stops.
| Who will inherit (relative category) | What will they inherit and other rules |
|---|---|
| Current spouse and children from the relationship. | The current spouse is entitled to the whole estate unless the deceased has children from previous relationships. |
| Current spouse, children from the relationship, and children of the deceased from a previous relationship. | If the deceased person has children from previous relationships, the current spouse is entitled to:
The remaining half of the estate is shared equally between all surviving children. ^If the estate does not cover the statutory legacy, then the spouse will be entitled to everything in the estate. *This figure is adjusted regularly to the current Consumer Price Index Where the deceased person had 2 spouses, there are special rules to determine what the spouses are entitled to. |
| If the deceased is not survived by: | Who will inherit (relative category) | What will they inherit and other rules |
|---|---|---|
| spouse | children of the deceased | Will receive equal shares of the estate. However, if any of the children have died leaving children of their own, those children (grandchildren of the deceased) will take the share their parent would have taken. Similarly, if any of those grandchildren have also died leaving children of their own then those children (being great grandchildren of the deceased) will take the share the grandchild would have taken. |
| parents of the deceased | Will receive equal shares of the estate. |
| brothers and sisters of the deceased | Will receive equal shares of the estate:
|
| grandparents | Will receive equal shares of the estate. |
| aunts, uncles, and first cousins | Will receive the estate in equal shares. However, if any of the aunts or uncles have died leaving children, those children (being first cousins of the deceased) will take the share their parent would have taken. If any of those first cousins have died, their children are not entitled. |
| NSW Government | NSW Government will receive the whole estate. |
Where the deceased person died intestate prior to 1 March 2010, different rules apply.
How NSW Trustee and Guardian administers an intestate estate
When administering an intestate estate, NSW Trustee and Guardian will search for relatives in order to confirm who should receive a share in the estate.
Our genealogy team will perform all required research. The team will identify, locate and prove if there are any relatives who have an entitlement to an estate. Learn more about how we administer an intestate estate (PDF 783.4KB) and how to refer an intestacy to NSW Trustee and Guardian.
To confirm who is entitled to an estate, we must carry out research to identify members of each ‘category’ of relative and their living status.
If there are no surviving relatives in a category, the research moves to the next category.
When there isn't a Will learn more about the entitlement rules for who will inherit an intestate estate.
Research takes time
Research can take time and may take many years
Our researchers have specialist skills and deal with a high volume of complex matters.
In Australia, we work with births, deaths and marriages registries in each state. Overseas research can be far more complicated.
Challenges include:
- dealing with jurisdictions, laws, record keeping systems and languages of different countries
- long delays from overseas organisations responding to our enquiries
- researching as far back as the mid-19th century depending upon the life span of relatives
- solving inconsistent evidence:
- sometimes records show different names, dates, or places of birth to what has been recorded elsewhere. Sometimes there is no father recorded on the birth certificate.
Tracing the movements of people from one place to another during their lifetime plays a key part.
Some of the evidence we must gather includes:
- birth, marriage and death certificates
- divorce records
- search certificates to verify children of the deceased, their parents, siblings, grandparents, aunts and uncles.
We may also need to search birth, marriage, death and divorce events in every state and country the deceased and each relative lived.
Why gather evidence
We gather evidence to find all people entitled to an estate to make sure we distribute correctly and fairly.
Sometimes we can't prove a relative's entitlement to an estate. When this happens, we may need to apply to the Supreme Court of NSW for an order to distribute the estate based on the findings made at the time.
Part of this application, known as a next of kin enquiry, is to prove that we have completed a thorough genealogical investigation and that we have performed our duties fully as administrator of the estate.
The court needs to be satisfied that we have done everything possible to establish who's entitled to the estate. The estate may then be distributed.
Resources
We have helpful resources for you to learn more about dying without a Will. All other resources about Wills and deceased estates can be found on our Publications and policies page.
NSW Trustee and Guardian Genealogy Guide
Our guide explains how NSW Trustee and Guardian carries out research to locate relatives when we administer a deceased estate with no Will.
Contact NSW Trustee and Guardian
Deceased estate enquiries
If we're administering a deceased estate you’re involved in, or if you’d like to refer an intestate estate to us, please contact our team:
- Phone: 1300 723 267
- Email: clientestablishment@tag.nsw.gov.au
More options to contact us.