About deceased estates
There are many things to organise and decisions to be made after someone dies. This can be overwhelming. You might need to manage and administer the deceased estate. A deceased estate is the estate (things owned and owed) of someone who has passed away. The Will is a legal document that sets out how the deceased wishes to distribute their assets and how the estate is administered after the person has passed away. When a person dies without a Will, it is referred to as dying ‘intestate’.
Importantly, a Will nominates an executor. The executor carries out the instructions in the Will, after someone has passed away. This can be a family member, friend, solicitor or you could choose NSW Trustee and Guardian.
Administering a deceased estate can be time consuming and complex. There are many steps involved with the successful administration of a deceased estate, this includes applying for probate. In some situations Wills can be contested. It is always a good idea for an executor/administrator to get professional legal advice when dealing with a deceased estate.
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How we administer your estate
We can provide executor services after you pass away, reducing the burden on your loved ones during a time of grief.
The Will and where to find it
A Will is a legal document that sets out who you want to receive your assets and how your estate is to be managed when you pass away.
Find a Will
Finding a Will can be one of the first tasks of family, trusted friends or the executor. This is because the Will might also include information about the funeral or memorial service.
If the person has a Will, you may be able to find it:
- at their home
- with their bank
- with their solicitor
- with the Supreme Court of NSW
- with NSW Trustee and Guardian.
If you don't know the name of their solicitor, try calling ones in their area and give them the following details:
- their full name
- their address
- date of death
- information about your relationship to them (for example, that you are the deceased person's spouse).
For more information, including a sample letter to lawyers, visit NSW LawAccess.
If you're the executor of a Will
If you have been named the executor of a Will, we have a step-by-step guide for executors to help you get started.
NSW Trustee and Guardian is the executor
NSW Trustee and Guardian can act as the executor and administer the deceased estate for you, learn more about NSW Trustee and Guardian as the executor.
If you're a beneficiary of a Will or trust
A beneficiary is a person or entity who receives a gift or benefit from a person’s estate as outlined in their Will.
I am a beneficiary of a Will
A beneficiary of a Will is someone you include in your Will and leave a gift or a benefit from your estate after you die.
Barbara recently passed away.
In her Will, she specified that she wanted her granddaughter Fran to receive her jewellery and her children Mary and Tom to receive the rest of her estate. Fran, Mary and Tim are all beneficiaries of Barbara’s Will
If you are a beneficiary under a Will and you consider the executor is not fulfilling their obligations, you should get legal advice.
You can learn more about the difference between an executor and an administrator.
Beneficiary tax obligations
There are also tax obligations if you are a beneficiary of the estate of someone who has died, you can learn more about beneficiaries of a Will in our helpful beneficiaries guide (PDF 1.19MB).
I am a beneficiary of a trust created in a Will
If you are a beneficiary of a trust set up under a Will, the trustee nominated in the Will is responsible for holding the funds and dealing with them under the terms of the trust.
A trust may last for a relatively short time (for example, until you reach a certain age at which time you may be entitled to receive the assets in your own name) or it could last for a much longer time (for example, funds may be held in trust for you for your lifetime). The terms of the trust define how the trust funds can be used for your benefit.
You can learn more about beneficiaries of a trust in our helpful Trusts guide (PDF 1.45MB).
If you're a trustee
As a trustee, you are responsible for managing trust property for another person or organisation, as outlined by the terms of the trust. Trust property includes money, shares and real estate.
A testamentary trust is a trust established under a valid Will. Learn more about a testamentary trust.
I am a trustee
Your role as a trustee
As a trustee you have legal obligations and can be personally liable for any breach of trust.
A trust can last many years, with your ongoing responsibilities to the beneficiaries including:
- managing property
- distributing assets according to the Trust terms
- keeping trust account records
- providing financial reporting to beneficiaries
- completing trust tax returns and paying any tax liabilities
- acting in the best interest of the beneficiaries
- not personally profiting from the trust
- sourcing good financial advice to maintain the trust
- investing the trust funds
- exercising reasonable care in any decision-making
- acting impartially between beneficiaries
- advancing money for the beneficiaries (for example, for school fees).
You can retire as trustee if you wish
Many people appoint a friend or relative as their trustee.
A trustee is an important role that involves complex decision-making. It can also be time consuming and challenging.
You may be able to request someone else to take on the role of trustee, including a professional trustee such as NSW Trustee and Guardian. Find out about the NSW Trustee and Guardian trustee costs and fees.
Sometimes a Will provides for several beneficiaries with differing needs. NSW Trustee and Guardian will make sure:
- that the terms of the Will (or any deed, or trusts issued by a court order) are complied with
- there is an appropriate strategy for managing the assets and investments
- take responsibility for managing assets and investments
- to act carefully and in the best interests of all beneficiaries.
Court ordered trusts
Court ordered trusts
The court system can appoint NSW Trustee and Guardian to administer trusts for children or for a person with disability.
NSW Trustee and Guardian will make sure the trust funds are used properly for the benefit of the recipient. They will determine appropriate expenditure and invest the trust funds prudently.
Who do NSW Trustee and Guardian report to?
NSW Trustee and Guardian must comply with all relevant legislation including the Trustee Act 1925 and the NSW Trustee and Guardian Act 2009 and answers to the court for the performance of our trustee duties.
We provide an annual report to state parliament through the Attorney General.
How NSW Trustee and Guardian invest funds
NSW Trustee and Guardian invests your estate, trust or funds held by NSW Trustee and Guardian as your attorney into our Trustee Common Fund. The Fund is made up of two separate funds:
1. Primary Portfolio
2. Growth Portfolio.
| Trustee common fund | Investment description |
|---|---|
| Primary Portfolio | Earns a competitive interest rate from a blend of money market instruments and term deposits. We are responsible for the management of the Primary Portfolio. |
| Growth Portfolio | Invests in Australian and international companies whose shares are listed on major stock exchanges. The share portfolios are diverse, with the aim of gaining capital growth over the medium to long-term. The unit price varies daily, depending on the market value of the shares. The Growth Portfolio invests in both Australian and international companies. It does this by putting money into unit trusts that are managed by an outside company. Right now, these trusts are managed by BlackRock, which is a highly rated international fund manager. |
If your money is invested with us, you automatically benefit from investment in the Primary Portfolio.
If you require long-term capital growth from your investment, a portion of your money may also be invested in the Growth Portfolio.
Income earned from both portfolios is credited back to your account around 30 June and 31 December each year and automatically re-invested in the Primary Portfolio.
Depending on your instructions, needs and the amount of money we hold for you, your money will be invested in cash and fixed interest securities (such as term deposits and unit trusts) through one or more of our portfolios.
NSW Trustee and Guardian fund investment reports
Download the NSW Trustee and Guardian fund investment reports.
Australian Death Notification Service
The Australian Death Notficiation Service (ADNS) allows you to notify multiple organisations online that someone has died so their accounts can be closed or transferred.
Dying without a Will
When a person dies without a Will, it is referred to as dying ‘intestate’. If this happens, an application is made to the Supreme Court for ‘Letters of Administration’. This is a document with the court’s formal approval for a person known as the administrator to administer the estate of the deceased.
Administer a deceased estate with no Will
Beneficiaries search (section 50)
In some cases, a section 50 search may be required to confirm if a person is named as a parent of a child or children. Find out more about a Beneficiaries search (section 50).
Applying to administer a deceased estate with no Will
The Court generally grants administration of an intestate estate to the person or people with the greatest entitlement in the estate (this may be a spouse or children) or to NSW Trustee and Guardian.
The appointed administrator is responsible for confirming relatives who are entitled to a share of a person’s estate, in accordance with the intestacy rules in the Succession Act 2006.
Learn more about how NSW Trustee and Guardian administer an intestate estate.
Who is entitled in an intestate estate?
Relatives are grouped into categories and are dealt with in the order specified by the Succession Act.
The administrator will need to finish dealing with one category of relatives completely before moving on to the next one. When a category is found where someone is eligible, the process stops.
| Who will inherit (relative category) | What will they inherit and other rules |
|---|---|
| Current spouse and children from the relationship. | The current spouse is entitled to the whole estate unless the deceased has children from previous relationships. |
| Current spouse, children from the relationship, and children of the deceased from a previous relationship. | If the deceased person also has children from previous relationships, the current spouse is entitled to:
The remaining half of the estate is shared equally between all surviving children. ^If the estate does not cover the statutory legacy, then the spouse will be entitled to everything in the estate. *This figure is adjusted regularly to the current Consumer Price Index |
Who is entitled when there is no spouse?
| If the deceased is not survived by: | Who will inherit (relative category) | What will they inherit and other rules |
|---|---|---|
| spouse | children of the deceased | Will receive equal shares of the estate:
|
| parents of the deceased | Will receive equal shares of the estate. |
| brothers and sisters of the deceased | Will receive equal shares of the estate:
|
| grandparents | Will receive equal shares of the estate. |
| aunts and uncles | Will receive equal shares of the estate. |
| first cousins only | Will receive their parent’s share per stirpes:
Note: If the deceased died prior to 1 March 2010 cousins are not entitled. |
| NSW Government | NSW Government will receive the whole estate. |
How NSW Trustee and Guardian administers an intestate estate
When administering an intestate estate, NSW Trustee and Guardian will search for relatives in order to confirm who should receive a share in the estate. If this process is complex or needs research overseas our genealogy team will step in.
Our genealogy team will perform all required research. The team will identify, locate and prove if there are any relatives who have an entitlement to an estate. Learn more about how we administer an intestate estate (PDF 413.1KB) and how to refer an intestacy to NSW Trustee and Guardian.
How NSW Trustee and Guardian conducts research
To confirm who is entitled to an estate, we must carry out research to identify members of each ‘category’ of relative and their living status.
If there are no surviving relatives in a category, the research moves to the next category.
When there isn't a Will learn more about the entitlement rules for who will inherit an intestate estate.
Research takes time
Research can take time and may take many years.
Our researchers have specialist skills and deal with a high volume of complex matters.
In Australia, we work with births, deaths and marriages registries in each state. Overseas research can be far more complicated.
Challenges include:
- dealing with jurisdictions, laws, record keeping systems and languages of different countries
- long delays from overseas organisations responding to our enquiries
- researching as far back as the mid-19th century depending upon the life span of relatives
- solving inconsistent evidence:
- sometimes records show different names, dates, or places of birth to what has been recorded elsewhere. Sometimes there is no father recorded on the birth certificate.
Gathering evidence
Tracing the movements of people from one place to another during their lifetime plays a key part.
Some of the evidence we must gather includes:
- birth, marriage and death certificates
- divorce records
- search certificates to verify children of the deceased, their parents, siblings, grandparents, aunts and uncles.
We must also search birth, marriage, death and divorce events in every state and country the deceased and each relative lived.
Why gather evidence
NSW Trustee and Guardian gathers evidence to find all people entitled to an estate to make sure we distribute correctly.
When we can't prove next of kin
Sometimes NSW Trustee and Guardian can't prove a relative's entitlement to an estate. When this happens, we may need to apply to the Supreme Court of NSW for an order to distribute the estate based on the findings made at the time.
Part of this application, known as a next of kin enquiry, is to prove that we have completed a thorough genealogical investigation and that we have performed our duties fully as administrator of the estate.
The court needs to be satisfied that we have done everything possible to establish entitlement in the estate. The estate may then be distributed.
Choose NSW Trustee and Guardian to administer your estate
NSW Trustee and Guardian has been administering deceased estates and trusts for over 100 years.
We provide complete estate administration services for beneficiaries, and for executors and trustees who wish to give up their role.
Resources
We have helpful resources for you to learn more about beneficiaries of a Will or beneficiaries of a Trust.
Guide for beneficiaries
This guide explains the process of carrying out the wishes outlined in the Will and how we will help you during this time.
Download NSW Trustee and Guardian trusts guideCurrent as of Thursday, 29 August 2024.
Download NSW Trustee and Guardian Wills and Estate Planning GuideCurrent as of Thursday, 08 August 2024.
Download NSW Trustee and Guardian Genealogy guideCurrent as of Friday, 09 August 2024.
Contact NSW Trustee and Guardian
For general enquiries, call:
- 1300 109 290 within Australia
- +61 2 9240 0702 from overseas
More options to contact us.