What to do when Deceased dies without a Will?

The next of kin, either the spouse, or the spouse and children if the children are not the issue of the spouse, have the right to organise the funeral and dispose of the deceased’s body.

It is also the next of kin who needs to approach assets holders to ascertain the requirements before the release of funds to the Estate. However, when there is no Will, asset holders usually require a Grant of Letters of Administration before release of the funds to the next of kin, also known as the “legal personal representative”.

A Grant of Letters of Administration is a document issued by the Supreme Court which confirms that the “legal personal representative” is entitled to administer the Estate and who the beneficiaries are when there is no Will. The next of kin should see a solicitor who can prepare the Application for Letters of Administration.

Who are the Next of Kin of a Deceased?

When a Deceased has not made a valid Will during his/her lifetime, it is often up to the Deceased’s next of kin to come forward and deal with the Estate.

Establishing who are the next of kin of a Deceased is crucial in determining who is entitled to administer and benefit from the Estate.

The next of kin, in this instance, will also have the right to organise the funeral and dispose of the Deceased’s body.

The next of kin should see a solicitor who can prepare an Application for Letters of Administration, to enable them to deal with the Deceased’s Estate.

Dispute as to Burial/Cremation - who decides? 

The law says that an Executor has the right to the custody and possession of a body for the purpose of burial.

Any wishes that a Deceased has noted in his/her Will are not binding on an Executor, as a Deceased has no property in his/her own body.

However, if a Deceased has left written instructions that his/her body is not to be cremated, then an Executor will be liable if he/she disobeys the Deceased’s instructions.

If a Deceased does not leave a Will, and so has not appointed an Executor, then the next of kin has the right to bury.

If there is no next of kin, then the law says that the person in whose house the Deceased dies has the right to bury.

If you pay money for a Deceased’s funeral, you are entitled to have same reimbursed to you from the Deceased’s Estate.

For more information on Intestacy contact Krystle Wolthers on (02) 4626 5077 or email Krystle on kwolthers@marsdens.net.au