Intestacy Rules in NSW: An Overview

23 November 2023

It’s not uncommon for someone to pass away without a valid will. It’s also not uncommon for someone to believe their will is valid, yet it either fails to meet the legal requirements to be considered as such or discludes a portion of their estate.

If a person passes away without a valid will, knowingly or not, they are considered to have died ‘intestate.’ This means that their estate will be distributed according to the intestacy rules outlined by the Succession Act 2006.

Unfortunately, intestacy legislation in NSW does not always result in the just distribution of an estate, at times failing to consider certain close relationships and dependents. Here, alongside defining intestacy and its rules, we’ll let you know the steps that you can take to dispute a will’s distribution.

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Intestacy — or to have died intestate — is a legal term used to describe when a person passes away without leaving a valid will. For NSW residents who have passed, this means that the intestate estate will be distributed according to the order outlined in the Succession Act 2006 which, in theory, works to ensure a systemic and fair distribution of an estate among beneficiaries.

The Succession Act 2006 outlines who gets paid out of an estate and in what order, as well as including details on what is considered part of an estate — i.e., that specific portions (and amounts) of an estate that are able to be distributed to the dependencies mentioned within the Act.

Partial intestacy differs from intestacy in that it involves a situation where a person has left a will, but the will does not effectively account for the entire estate — or, there are instructions within the will that are unable to be carried out. Partial intestacy can occur for a handful of reasons: the deceased person may have wanted to hide some of their wealth, or the will was simply written prior to the full estate’s acquisition.

In these cases, the part of the estate not covered by the will is generally distributed according to intestacy law while honouring any valid instructions outlined in the will.

Intestacy rules NSW

Each state differs slightly in how a will is distributed in light of an invalid will. In NSW, there is a hierarchical order of beneficiaries who are legally entitled to receive a share of an estate, which is as follows:

If a person dies intestate and was married at the time of their death, their spouse is principally entitled to the entire estate; this applies also for those who were in a de facto relationship at the time of their passing.

Note: A de facto relationship is defined as one where a couple live together and have a genuine domestic relationship, but are not married. However, there is no cut and dry definition of de facto relationships/a domestic partner, and each — when it comes to determining the validity of a relationship regarding a will’s distribution — are considered on a case-by-case basis.

So, while a person who dies intestate’s estate is passed to their spouse or the person they were in a de facto relationship with, there is a caveat: If the deceased person has had multiple spouses, particularly if they have children with a previous spouse, the current spouse/de facto partner then receives half of the remaining estate alongside a portion of other constituents.

It’s common perception that if a person is married with children (from the single marriage, rather than a past marriage) and then passes without a valid will, that the estate will be distributed among both the spouse and children. Under NSW intestacy law, however, this isn’t the case — the spouse is legally entitled to the entire intestate estate. But, if a person dies intestate without any spouses yet has children, then it is the children that are legally entitled to the estate.

There are further ifs and ands of NSW intestacy law; the important thing is to gain personalised advice from a specialised will’s solicitor. They will be able to tell you how the law applies to you specifically and how much of an estate you may be entitled to.

Do you want to learn more about contesting a will or an estate’s distribution?

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The appointment of an executor

Another ‘rule’ of NSW intestacy law is the appointment of an executor — also called an administrator — who is responsible for collecting the deceased’s assets, paying their debt in the correct order and distributing the remaining assets to the rightful beneficiaries according to the relevant legislation.

When a person passes intestate, the Supreme Court of New South Wales provides a Letter of Administration which authorises an executor to manage the distribute the deceased person’s estate — a responsibility that generally falls to the next of kin.

In circumstances where a valid will is present, the role of an executor may be more straightforward: a valid will generally contains a designated executor as named by the deceased person. The executor then has the responsibility to manage and distribute the estate according to the wishes of the deceased person and in the best interest of rightful beneficiaries.

When a person dies intestate, however, the executor’s role changes slightly in that they are responsible to distribute the estate in accordance with the rules of intestacy. Unfortunately, the absence of a clear directive from the deceased person can lead to disputes among potential heirs, in turn causing delays, legal complications and familial disputes.

It’s not uncommon then for beneficiaries to feel they lack adequate provision, and that they are entitled to more of an estate that they have received. If this relates to you, then consider reaching out to one of GMP Law’s specialised will dispute lawyers who can provide you with personalised legal advice and help you gain the portion of an estate that you’re legally entitled to.

Disputing a will

Once the Letter of Administration has been granted, the executor then must provide notice of the timeframe during which they intend to distribute the estate’s assets. The executor is unable to distribute assets within six months of the death of intestate; this is because less than six months is considered to be insufficient time for beneficiaries and related individuals/entities (i.e., creditors and debt collectors) to inform the executor of their right to an estate’s portion.

Once the six month period is over and the estate is distributed, the executor is then protected from any claims that were not raised during the notice period.

If six months is yet to pass and you believe that you have a valid claim to dispute the estate’s distribution, then consider taking prompt action: gather evidence that displays your relationship with the deceased person, such as correspondence, financial transactions and other relevant documents that may substantiate your claim. Then, speak with one of our will dispute lawyers who will be able to assess the merit of your claim, provide you with legal advice and determine the best pathway forward.

If six months has passed and the estate is either in the process of being or distributed or has already been distributed, then you may still have legal options, although they may be more limited. As circumstances and entitlements vary significantly, consider a free consultation with one of our solicitors to talk through the available options.

Book an appointment with our expert team

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Have you been unfairly left out of an estate?

If you believe that you haven’t received adequate provision and are considering contesting a will or an estate’s distribution, help is available.

Our specialised team of will dispute solicitors have the legal expertise and resources necessary to inform you on your legal options and provide you with the representation necessary to bring about a positive outcome.

To make our legal services accessible, we offer our clients our no-win, no-fee policy. This means that we only get paid if your dispute is successful, and the amount that we’re paid is predetermined — with zero hidden costs. There are also a handful of upfront costs associated with estate disputes, such as court fees, administration expenses and potential expert witness costs, among others. Through our no-win, no-fee policy, we take on all of these costs, allowing you to gain expert legal advice and representation without unnecessary financial strain.

First things first, gather all the relevant information that you can that may help build your case, such as a copy of the will in the case of partial intestacy, any correspondence or communication that shows your relationship with the deceased and other documentation that may support your claim. During your free consultation, your solicitor will take a look at your case and provide you with all the information you need to know, as well as answer any questions that you may have.

To book your free, confidential consultation, click here. Or, to learn more about our expertise in disputes regarding intestacy and partial intestacy law, click here.

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Intestacy Rules in NSW: An Overview

Intestacy rules NSW

Do you want to learn more about contesting a will or an estate’s distribution?

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The appointment of an executor

Disputing a will

Book an appointment with our expert team

Call 1800 004 878

Have you been unfairly left out of an estate?

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