No Will? No Executor

What is intestacy?

In NSW, if you do not have a valid Will as at the date of death, you are deemed to have died intestate.

Intestacy can have various consequences for how your assets may be distributed after your death, including the possibility your estate will pass to the State Government (see Will the Government inherit your estate?). Before those kinds of difficulties arise, however, someone will need to take care of disposing of your body, arranging your funeral and attending to the matters an executor would ordinarily undertake after someone has died.

If you have not made a Will, you have not named an Executor. This can cause issues and disputes because it is not clear who should take responsibility for your affairs.

What happens when there is no Executor?

When there is no person named as an Executor, it must be determined who has the highest right to administration of the estate. The role of an Administrator is not dissimilar to the role of an Executor, but the process of determining who should be appointed as an Administrator is far more complicated and costly than the quick and cheap alternative of naming an Executor in a Will.

Section 63 of the Probate and Administration Act 1898 provides:

To whom administration may be granted

The Court may grant administration of the estate of an intestate person to the following persons, not being minors, that is to say to:

1. the spouse of the deceased, or
2. one or more of the next of kin, or
3. the spouse conjointly with one or more of the next of kin,

or if there be no such person or no such person within the jurisdiction:

1. who is, of the opinion of the Court, fit to be so trusted, or
2. who, upon being required in accordance with the rules, or as the Court may direct, to apply for administration, complies with the requirement or direction,

then to:

4. any person, whether a creditor or not of the deceased, that the Court thinks fit.

If there are multiple people that fit into some of the categories above, the Court may be required to determine who should be the Administrator and under what conditions they should be appointed. Disputes of this nature can be emotional, disruptive and long lasting.

Grants of Administration

In NSW there are many different types of Grants of Administration. Some of these grants are only made for a limited period of time, or only for a specific purpose. The type of grant that needs to be made will always depend on the unique facts and circumstances of the matter.

The evidence necessary to obtain a Grant of Administration far exceeds the costs of making a valid Will.

If you wish to avoid the costs of intestacy being passed on to your intended beneficiaries, ensure you have made a valid Will and you have considered nominating backup or alternate executors to avoid issues with the administration of your estate.

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