Executor of an estate

How Do You Become Executor of an Estate Without a Will?

12 October 2021 | All Wills and estates

The sudden death of a parent or guardian is devastating. Being unaware of their net worth after their demise, that’s frustrating.

There is a way to overcome the frustration. Apply to become an administrator of an estate. How do you become one?

New South Wales has simplified estate administration. Its state’s succession laws specify all the requirements of an executor. 

Becoming an estate’s executor as a next of kin starts by verifying your eligibility to be one. Next, familiarise yourself with New South Wales’ succession laws. 

With this knowledge, you’ll understand what you need to do as an administrator. Once you understand, submit application forms for estate administration to the Supreme Court. 

Here’s what you need to know:

 

Verify Your Eligibility to Become an Executor

In New South Wales (NSW), dying intestate means a person dies without leaving a will. 

To become an executor, you have to meet the following conditions as the remaining relative seeking to administer the estate:

 

RequirementDescription
AgeLegal age of 18 years and above.
CitizenshipMust be an Australian citizen. Provide supporting documents like a birth certificate.
Relationship with the deceasedThe state gives first-hand consideration to a surviving spouse or next of kin. 

If none of them is interested in becoming an executor, they can submit written waivers declaring this.

 

Understand Your Role as an Executor of the Deceased’s Estate

Estate administration is not a walk in the park. Your responsibilities include:

  • Computing all the assets. Examples of an estate include real estate property, savings, shares and stocks. 
  • In case of disputes, ask for advice from competent law firms. Seek advice on family succession laws, wills and financial agreements.
  • Representing the estate in any public aspects of the estate. You are the personal representative of the estate during disputes and court proceedings.
  • Updating beneficiaries on any activities undertaken. For example, accounting details, income taxation and expenses incurred. Giving updates calls for impartiality for the best interests of everyone.
  • Offsetting any pending debts and liabilities before you start to divide the estate.

MDV Family Lawyers Team

Establish Eligible Relatives Who Will Receive Inheritance

Familiarise yourself with the state laws of New South Wales on wills and estate administration. The laws appear in the Succession Act of 2006

Find all the intestacy rules on eligible relatives in Chapter 4 of the Succession Act.

The amended version of 2009 describes eligible members as spouses and other relatives. 

Specify eligible beneficiaries using relevant documents that declare their relationship with the deceased. Documents can include birth, marriage and adoption certificates. 

 

Distribution of Intestate Estate to a Surviving Spouse

A spouse is eligible if they meet the following criteria.

  • Was married to your deceased parent up until your parent’s demise.
  • Was a de facto partner. A de facto relationship means they were in a real partnership, but lacked legal documents. 

De facto relationships are controversial. If you are not sure of the spouse’s eligibility as a de facto partner of your deceased parent, you have a right to know the following:

  • Valid de facto relationships should have lasted at least two years or more—including same-sex couples. 
  • Did they acquire and own any properties together?
  • How long were they in a relationship? Was it an intimate relationship?
  • Was there a mutual commitment to each other?
  • Did they have a common residential home?
  • Were there shared responsibilities for children, household chores, and pets?
  • Was there any financial dependence?
  • Did they register their relationship?

The two individuals had a genuine domestic basis as de facto partners if it’s yes to most or all the questions.

When administering the estate: 

  • The surviving spouse receives the entire estate. As the deceased person’s child, you do not receive any share in this case. 
  • In case there are many surviving spouses with no children, you will divide the estate among them into equal shares.

 

Distributing to Other Family Members

When it comes to other living relatives, the succession laws apply as follows. Note that you exhaust the priority list as soon as you find legitimate relatives.

Children

All adult children receive equal distribution according to the intestate succession state law. In the case of minors, appoint a guardian who will manage the assets until the child becomes of legal age. 

If the deceased’s children have already passed away but they had children, they’ll be the ones who receive the assets. Great-grandchildren receive the remaining assets if their parents (grandparents) passed away.

Parents

The deceased parents inherit an equal share of the estate if the deceased lacked a spouse and children. If only one parent is alive, they become the sole beneficiary of all the assets. 

The Intestate’s Siblings

Divide equal sizes of the estate to both full and half-siblings if all other members have passed away.

Grandparents

Grandparents inherit if the deceased lacked a spouse, children, parents or siblings. Both grandparents will receive equal shares if still alive. 

Aunts and Uncles

In the intestacy rules, these relatives are the second last to receive the estate. If either of them is deceased, the others inherit the estate. 

Cousins

Only distribute to the first cousins of the deceased if all the other legitimate relatives have passed away. 

The state of New South Wales can act as the sole beneficiary to an estate if the person died intestate and lacked a next of kin.

Apply for Letters of Administration

Once eligible to become an executor, you need to obtain Letters of Administration. In a nutshell, these serve as the court order which permits you to administer the estate. Obtain them from the Supreme Court of New South Wales.

The complexity of the application process changes from person to person. Required information and forms to fill in vary depending on individual circumstances.

Basic Steps Involved in Letters of Administration Application

  • The first step is to determine the existence of a valid will. Make consultations with relevant parties such as banks and solicitors. Let them help you to unearth any unknown personal files and bank accounts. 
  • Verify that the estate is in New South Wales. The state law on intestate succession only applies to estates within. 
  • Obtain the following documents for the deceased and yourself as the personal representative: Get a death certificate for the deceased. Verify your relationship with the deceased by providing either a birth or adoption certificate. 
  • Confirm and pay the appropriate filing fee. The amount you pay depends on the estate’s valued assets. Valuation starts from less than $100,000 up to $5,000,000 or more. 
  • Place a notice stating that you wish to apply for the grant. Send your notice 2 weeks before the application. The probate court displays all notices for transparency. During this period, creditors can contest for the property once they view the notice. In case your relatives are aware of an existing will, they can inform you. 

After 2 weeks, if no will has surfaced, you can file all the required paperwork for the letters of administration. 

Follow the same probate process if there was a valid will. In such a case, you’d be issued a grant of probate. 

Before you can begin estate distribution,

  • Issue a notice of when you intend to distribute. In New South Wales, you must issue the notice six months or more after the death of your relative. Creditors can claim appropriate assets to offset any pending debts within this period.
  • Submit any provision claims for relatives who were under the care of the intestate. After the 6 months elapse, no one can raise any claims on the estate against you. 

 

Are You Ready to Administer an Estate? Seek Legal Advice

Seeking to become an administrator doesn’t have to be daunting. At MDV Family Lawyers, we pride ourselves on years of experience in handling countless estate planning legal cases. 

We answer all your questions about wills and estate administration. Call us or book your appointment online to get legal advice from our professional staff.