What efforts are needed to settle a case of intestacy?

Date: Jul 07, 2015

In the event of a case of intestacy, an individual close to the deceased will need to seek letters of administration through the NSW Supreme Court before they can begin the process of distributing the estate. Once an administrator has been appointed, the next step is for that individual to track down any potential beneficiaries of the estate.

In some instances, the process of finding potential beneficiaries can be difficult, especially in cases that involve immigration and other complicating factors.

These issues were recently seen in a case before the NSW Supreme Court, in which the administrator of an estate sought what is known as a "Benjamin order".

A Benjamin order allows the applicant to administer the estate to a intestate person's found relatives, while still allowing for the possibility that further relatives might be alive but have not been tracked down.

This specific case arose from the passing of a man who was born in Germany in 1939, and subsequently migrated to Australia in the 1960s. Because of the upheaval caused by the Second World War, the administrator of the estate was unable to conclusively prove the man might not have a half-sibling still residing in central Europe.

Similar searches were also undertaken in Melbourne and Sydney to ascertain if the man had started a family at any time since his migration to Australia.

This led the administrator to apply for a Benjamin order, allowing the man's estate to be inherited by member's of his extended family who were eligible under the Succession Act 2006 (NSW).

The courts were satisfied that every effort had been made to find the deceased's potential relatives, both within Australia and in central Europe, and granted the order. The Judge also noted that the issuing of a Benjamin order doesn't mean that eligible relatives who have not been found lose their right to seek a provision in a case of intestacy.

However, the Judge still confirmed that the administrator had taken sufficient steps to find these individuals and that further efforts would be unnecessarily time consuming and expensive.

To learn more about the process of administering a case of intestacy, make sure to consult with specialised wills and estates lawyers. They will also be able to assist with drafting a will that can ensure your estate is distributed according to your wishes.