Intestacy in Australia: Who Inherits When There Is No Will

§1Intestacy in Australia: Who Inherits When There Is No Will

§2When a Family Is Left Without Answers

Marcus, a 58-year-old tradesperson in New South Wales, passes away unexpectedly following a heart attack. He had spoken about updating his old will but never got around to it — and that old will, made twenty years ago, had already been revoked when he remarried. He leaves behind a current wife, two adult children from his first marriage, and a modest home worth $820,000 plus a superannuation account. His family assumes his wife will simply receive everything, but his adult children believe they are also entitled to a share. With no valid will in place, the estate is now governed by NSW intestacy law, and the outcome may surprise everyone involved.

This scenario plays out across Australia thousands of times each year. Understanding how intestacy rules work — and where they differ between states — can help families navigate one of the most stressful situations they will ever face.

§3What Intestacy Actually Means and Why It Happens

A person dies "intestate" when they leave no valid will at all, or when their will fails to deal with part or all of their estate. A will can be invalid for several reasons: it was not signed and witnessed correctly, it was revoked by a subsequent marriage (in most states), or it was successfully challenged in court.

Intestacy is far more common than most people expect. Many Australians never make a will, and others make one early in life and never update it through marriages, divorces, or the birth of children — meaning the document becomes legally ineffective at exactly the wrong moment.

When intestacy applies, the deceased's assets are distributed strictly according to the relevant state or territory legislation — not according to what family members believe the deceased would have wanted. There is no discretion for an administrator to simply hand things out as they see fit.

§4The Core Legal Issues and How They Are Decided

The central question in any intestate estate is: who are the beneficiaries, and in what proportions? The answer depends on three key variables:

1. 1.Which state or territory law applies — generally the law of the state where the deceased was ordinarily resident at the time of death.
2. 2.The family structure left behind — whether the deceased had a surviving spouse, de facto partner, children, parents, or more distant relatives.
3. 3.The size and composition of the estate — particularly whether there is a surviving spouse and children from an earlier relationship.

Each Australian state and territory has its own intestacy legislation. NSW operates under the Succession Act 2006 (NSW), as amended by the Succession Amendment (Intestacy) Act 2009 (NSW). Victoria uses the Administration and Probate Act 1958 (Vic). Queensland, South Australia, Western Australia, Tasmania, the ACT, and the Northern Territory each have their own equivalent statutes. The general framework is broadly similar, but the specific amounts — particularly the "statutory legacy" paid to a spouse — vary significantly and are updated periodically.

In Bailey v Palombo [2020] NSWSC 1209, the NSW Supreme Court noted the relative absence of case law on the intestacy scheme and examined the statutory framework in detail, highlighting that the rules are more nuanced than many families expect.

A critical concept is the statutory legacy: a fixed dollar amount that a surviving spouse receives off the top of the estate before any further division with children. If the estate is worth less than the statutory legacy, the spouse generally receives everything. If the estate exceeds the statutory legacy, the surplus is divided — typically with part going to the spouse and part to the children. Confirm the current statutory legacy figure with the relevant state probate registry, as it changes over time.

§5The Order of Priority: Who Gets What

Australian intestacy laws follow a hierarchy. If a person at a higher level of priority exists and survives the deceased, they inherit first. Here is the general order:

De facto partners are recognised in all Australian jurisdictions, but the qualifying criteria differ. In most states, a de facto relationship must have lasted at least two years, or the couple must have had a child together, or one partner must have made substantial contributions to the relationship. If a de facto relationship is disputed — for example, by adult children of the deceased — it can become a contested legal matter before probate is granted.

The hotchpotch rule, examined in Reynolds v Bonnici [2017] NSWSC 828, is another layer of complexity. It can require a child who received a significant gift from the deceased during their lifetime to bring that amount into account before claiming their intestate share, to ensure fairness between siblings.

§6Step-by-Step: How an Intestate Estate Is Administered

§7Step 1 — Identify whether a valid will exists.

Search the deceased's personal papers, safe deposit box, and contact their solicitor. Some states have will registers. If no will is found, intestacy rules apply.

§8Step 2 — Apply for Letters of Administration.

Unlike probate (which confirms a will), an intestate estate requires letters of administration from the relevant Supreme Court. The application is typically made by the person entitled to the largest share under intestacy — usually the surviving spouse.

§9Step 3 — Gather and value the estate.

The administrator must identify all assets and liabilities, obtain valuations, and determine what forms part of the estate. Note that assets held as joint tenants, superannuation, and some life insurance policies pass outside the estate and are not subject to intestacy rules.

§10Step 4 — Pay debts and taxes.

Debts, funeral expenses, and administration costs must be settled before beneficiaries receive anything. There is no inheritance tax in Australia, but capital gains tax may apply on certain assets.

§11Step 5 — Distribute according to the intestacy formula.

Apply the relevant state law to calculate each beneficiary's entitlement. For complex family structures, legal advice is strongly recommended before any distribution occurs.

Timing and cost: A straightforward intestate estate with clear beneficiaries might be resolved in three to six months. Contested matters — particularly those involving disputed de facto relationships or competing family provision claims — can take considerably longer and cost significantly more. Court filing fees and solicitor costs vary by state; confirm with the relevant Supreme Court registry.

§12Family Provision Claims Can Change Everything

Even once the intestacy formula is applied, the outcome is not always final. Australian law allows eligible persons — including spouses, children, and in some states former spouses or stepchildren — to apply to the court for family provision if they believe the intestacy distribution does not make adequate and proper provision for them.

In In the Estate of the late Anthony Marras [2014] NSWSC 915, the court considered exactly this interplay: whether a family provision applicant could seek an order that went below the statutory legacy the spouse was entitled to receive under the intestacy rules. The question of how the statutory legacy interacts with a family provision order remains a nuanced area of law.

Similarly, in D H Singh & Anor v G K Singh & Ors [2015] NSWSC 1457, the court examined the test for family provision orders in the context of competing claims on an estate — a scenario that frequently arises where an intestate estate has multiple potential claimants.

Time limits for family provision applications are strict — typically 12 months from the date of death in NSW, though this can vary. Missing the deadline can extinguish your right to apply entirely.

§13Common Mistakes and Misconceptions

§14"My partner will automatically get everything."

Not necessarily. If you have children from a prior relationship and your estate exceeds the statutory legacy, those children are legally entitled to a share. This frequently surprises blended families.

§15"A de facto relationship is always recognised."

Disputed de facto claims are one of the most contested areas of intestacy law. Without documentary evidence of the relationship, a partner may face a difficult court process to establish their entitlement.

§16"Superannuation is part of the estate."

Superannuation does not automatically form part of the estate and is generally not governed by intestacy rules. It is controlled by the trustee of the fund and any death benefit nomination the deceased made.

§17"The oldest child becomes administrator."

Any person entitled to a share of the estate can apply for letters of administration. Priority is given based on entitlement, not age.

§18"We can just agree among ourselves."

Informal agreements between family members can create tax complications, disputes down the line, and potential liability for the administrator. Any variation to the intestacy distribution should be documented formally — typically through a deed of family arrangement prepared by a solicitor.

§19Checklist: What to Do When Someone Dies Without a Will

• [ ] Search thoroughly for any will (papers, solicitors, state will registers)
• [ ] Obtain the death certificate
• [ ] Identify the deceased's assets and liabilities
• [ ] Determine which state's intestacy law applies
• [ ] Identify all potential beneficiaries under that law
• [ ] Apply for letters of administration at the relevant Supreme Court
• [ ] Notify banks, insurers, and government agencies
• [ ] Check superannuation and joint tenancy assets separately
• [ ] Confirm the current statutory legacy amount with the registry
• [ ] Seek legal advice before distributing — particularly in blended family situations
• [ ] Check whether any person is considering a family provision application and note relevant time limits

§20Relevant Law

The primary legislation governing intestacy differs by state and territory. In NSW, the Succession Act 2006 (NSW) (as amended by the Succession Amendment (Intestacy) Act 2009 (NSW)) sets out the complete framework for distributing intestate estates, including the statutory legacy amounts, the hotchpotch rule, and the interaction with family provision applications. The family provision test under the Succession Act 2006 (NSW) (s 59(2)) is particularly relevant where an eligible person seeks provision from an intestate estate, as the court must consider both the adequacy of the intestacy distribution and the proper claims of all competing parties.

§21Real Cases That Show How the Rules Work

The intestacy framework in NSW has been scrutinised by the courts in several important decisions. In Bailey v Palombo [2020] NSWSC 1209, the Supreme Court took the opportunity to map out the statutory framework in detail, noting that the scheme created by the intestacy provisions had generated relatively little case law up to that point — meaning many aspects remain less settled than families might hope.

Reynolds v Bonnici [2017] NSWSC 828 explored whether the hotchpotch rule should apply to a particular lifetime gift, demonstrating how what appears to be a straightforward division among children can become contested when prior transfers are brought into account.

In the Estate of the late Anthony Marras [2014] NSWSC 915 illustrates the tension between the intestacy formula and the family provision jurisdiction. Where an estate passes entirely or predominantly to a spouse under the intestacy rules, other potential claimants — such as children from a prior relationship — may still bring a family provision claim.

D H Singh & Anor v G K Singh & Ors [2015] NSWSC 1457 is a reminder that competing family claims on an estate — whether testate or intestate — are assessed holistically, with the court weighing the needs, means, and conduct of all claimants before determining what provision is adequate and proper.

None of these cases should be read as a guarantee of any particular outcome. Every estate is different, and the court's assessment is highly fact-specific.

§22Your Next Step

You can start by getting a free AI matter analysis from ROY to understand how intestacy rules may apply to your specific situation — and from there, connect with a qualified Australian solicitor for tailored legal advice.

Disclaimer: This article provides general legal information only and does not constitute legal advice. Laws vary between Australian states and territories and change over time. You should consult a qualified solicitor for advice specific to your circumstances.