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NSW Deceased Estate - Free Legal Advice re Intestacy?

Discussion in 'Wills and Estate Planning Law Forum' started by Legalbrain, 1 April 2015.

  1. Legalbrain

    Legalbrain Member

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    Hello,
    My Grandmother passed away late last year without leaving a will. My father passed away prior to my Grandmother. My uncle is the only child of my Grandmother that is still alive. My siblings and I have contacted my uncle on a number of occasions to understand what he has done regarding my Grandmother’s deceased estate, and up until the last week he had done nothing, but he now says that he has spoken with a solicitor and things are progressing. My siblings and I haven't yet engaged with a solicitor ourselves as we haven't wanted to cause a family rift and seem like we’re “just after the money”.

    Our understanding is that under NSW law, since our father is deceased, we would take his share equally between us. From our initial discussions with our uncle, it was clear that he thought it was at his discretion to determine how the estate would be distributed. From more recent discussions, even after him having seen the solicitor, our feeling is that he still thinks that this is the case (or at least he thinks he can/will do what he wants regardless of what the law says). We assume that he has applied for letters of administration, rather than appointing an administrator. He is not forthcoming on providing any information on the matter, or exactly who he has spoken with.

    I therefore have the following legal questions that I would really appreciate some guidance (or free legal advice online) on:
    *If my uncle has applied for letters of administration, does that mean that he will personally receive the proceeds of the estate, which he will then personally be responsible for distributing?

    *If so, what measures are in place to stop him from not following the law i.e. NOT distributing my father's share equally between myself and my siblings?

    *How can we find out what exactly what we are entitled to, so that we can identify if he hasn't followed the law when distributing the proceeds of the estate?

    Many thanks.
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Legalbrain,

    Unless and until the NSW Supreme Court grants letters of administration, the estate of a deceased person vests in the NSW Trustee & Guardian. However if a family member applies for letters of administration and they are granted, then the estate becomes vested in that person for the purpose of distribution. However there are some safeguards in place to ensure that other beneficiaries receive their entitlements.

    The alternative is applying to the court to appoint the NSW Trustee and Guardian as the administrator of the estate and they do all the work.

    If your uncle is seeking advice from a lawyer about this I'm sure that they will make him aware of his obligations as "administrator" to divide the estate in accordance with the rules of intestacy and not how he sees fit.

    When applying for letters of administration, the applicant is required to provide an affidavit (a sworn document) detailing:
    • the deceased's eligible relatives (attaching the necessary birth, marriage and death certificates);
    • actions taken to search for a will
    • all assets and liabilities of the deceased; and
    • attaching the death certificate and published a notice of intended application
    Your uncle should also ideally be obtaining signed consents of all other eligible beneficiaries to file with this application. In the case that the other beneficiaries can't be found, then the person applying for letters of administration must provide a bond to the court to cover their inheritance.
     
  3. Legalbrain

    Legalbrain Member

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    Many thanks Sophea, best regards.
     

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