7th October, 2025
Most people know that a Will is essential. However, fewer understand what happens when assets go missing or are given away before death. In New South Wales (NSW), these situations may involve concepts like clawback claims, lost asset recovery, or even bona vacantia-Latin for “ownerless goods”.
While proper estate planning can reduce the risk, issues can still arise. Knowing your options may help protect entitlements or locate missing assets after a loved one dies.
What Is a Clawback or Notional Estate Claim?
Under the Succession Act 2006 (NSW), courts may “claw back” certain assets into the estate. These are known as notional estate claims.
Let’s say someone gifts their house to a relative shortly before death. If this gift was made within three years and not for full value, it may be reclaimed. The court can treat it as part of the estate again. This process exists to stop people from avoiding family provision claims by giving assets away before they die.
Notably, this law is unique to NSW, as other Australian states do not recognise notional estates in the same way.
How Do Assets Become “Lost” or “Unclaimed”?
Even with the best intentions, assets can become lost or unclaimed, especially when someone dies intestate (without a valid will). This can happen if:
- A deceased person held bank accounts or shares under a different name
- Real estate or superannuation was not disclosed to family members
- Records were lost, outdated, or kept private
When a person dies intestate, and no rightful heirs are found or come forward, these assets may remain unclaimed for years. Eventually, under the principle of bona vacantia, the NSW Government can claim ownership of these assets.
What Is Bona Vacantia?
Bona vacantia applies when someone dies intestate and no eligible heirs are found. After 12 years, the state becomes the legal owner of the unclaimed estate. Before that, the NSW Trustee & Guardian investigates to locate any beneficiaries.
Moreover, bona vacantia can apply not only to deceased estates but also to:
- Abandoned property
- Assets of dissolved companies
- Unclaimed superannuation or shares
Although rare, family members may recover these assets if they can prove a valid legal relationship and entitlement.
Can Assets Be Recovered Later?
Yes, but it can be difficult. A successful claim must include evidence such as birth certificates, Wills, or financial records. Time limits may also apply. If you think you are eligible, it is best to seek legal advice early.
Protecting Your Family’s Future
Preventing these complications starts with clear estate planning. However, if assets are missing or given away, legal help may still be available.
Our team at Castrikum Adams Legal assists clients across Bangalow, Byron Bay, Mullumbimby, Lismore, Ballina and surrounding areas with hidden asset recovery, notional estate claims, and bona vacantia. Whether you’re seeking to reclaim property or want to secure your family’s future, we’re here to help.
Contact us today for tailored guidance from our experienced estate planning team.
If you found this blog helpful, please check out our other blogs on Estate Planning.
The content of this Blog does not constitute legal advice, is not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any specific matters you or your organisation may have.