In New South Wales, this does not mean that their estate is automatically taken by the government. Instead, their estate is distributed according to a strict legal formula set out in the Succession Act 2006. These rules are known as the rules of intestacy.
While the intestacy rules provide a default system for distributing an estate, they do not take into account what the deceased person may have actually wanted. This can create unfair outcomes, particularly in blended families, estranged family relationships, and cases where someone was financially dependent on the deceased but is not recognised under the intestacy rules.
This article explains what happens if someone dies without a Will in NSW, who is entitled to inherit, who can administer the estate, and what options may be available if the outcome is unfair.
What Does It Mean to Die Without a Will?
A person dies without a Will if:
- they never made a Will;
- they made a Will, but it is invalid;
- their Will does not deal with all of their estate;
- the named beneficiaries have died and there is no substitute beneficiary; or
- the Will has been revoked and no new Will was made.
If only part of the estate is not covered by a valid Will, this is called a partial intestacy. In that situation, the Will may still apply to part of the estate, while the intestacy rules apply to the remaining part.
Who Administers the Estate If There Is No Will?
If there is a valid Will, the person named as executor usually applies for probate.
If there is no Will, there is no executor. Instead, an eligible person must apply to the Supreme Court of NSW for Letters of Administration.
A grant of Letters of Administration gives the administrator legal authority to deal with the deceased person’s estate. This may include:
- collecting estate assets;
- closing bank accounts;
- selling or transferring property;
- paying debts and liabilities;
- dealing with tax issues;
- identifying the people entitled to inherit; and
- distributing the estate according to law.
Usually, the person with the greatest entitlement to the estate has priority to apply. This is often the surviving spouse, de facto partner, adult child or another close relative.
In some cases, NSW Trustee and Guardian may administer an intestate estate, particularly where there is no suitable family member willing or able to act.
Who Inherits If Someone Dies Without a Will in NSW?
The intestacy rules apply in a set order. The estate is distributed to the first category of eligible relatives. Once an eligible category is found, the process generally stops and more distant relatives do not inherit.
The order depends heavily on whether the deceased person left a spouse, de facto partner, children, or other relatives.
If the Deceased Leaves a Spouse but No Children
If the deceased person leaves a spouse or de facto partner, and no children, the spouse is generally entitled to the whole estate.
This includes married spouses and eligible de facto partners.
If the Deceased Leaves a Spouse and Children of That Relationship
If the deceased leaves a spouse and children, and all of the children are also children of that spouse, the spouse is generally entitled to the whole estate.
For example, if a husband dies without a Will and leaves a wife and two children from that marriage, the wife will usually inherit the whole estate under the NSW intestacy rules.
This can surprise some children, particularly adult children, who may assume they will automatically receive a share. However, under the intestacy rules, where all children are also children of the surviving spouse, the spouse generally takes the estate.
If the Deceased Leaves a Spouse and Children From a Previous Relationship
This is where intestacy often becomes more complicated.
If the deceased person leaves a current spouse or de facto partner and also leaves children from a previous relationship, the estate is divided differently.
In that situation, the surviving spouse is generally entitled to:
- the deceased’s personal effects;
- a statutory legacy; and
- one half of the remainder of the estate.
The children then share the other half of the remainder of the estate equally.
The statutory legacy is indexed and changes over time. As at the current April to July 2026 quarter, one published calculation places the NSW statutory legacy at $611,387.84, although the applicable amount depends on the date of death and should always be checked before advice is given.
This can have a major impact in blended family situations. In some cases, the statutory legacy and the spouse’s share of the residue may significantly reduce what children from a previous relationship receive. In smaller estates, the spouse may effectively receive the entire estate.
What Happens If There Is More Than One Spouse?
It is possible for a person to leave more than one spouse for the purposes of intestacy.
For example, the deceased may have been legally married to one person but living in a de facto relationship with another person at the date of death.
Where there are multiple spouses, special rules apply. This can become complex and may require agreement between the spouses or a Court determination.
These disputes can be particularly sensitive because they often involve questions such as:
- whether a de facto relationship existed;
- whether the deceased was separated from their husband or wife;
- the nature and length of the relationship;
- whether the parties lived together;
- financial interdependence;
- public aspects of the relationship; and
- competing claims between a married spouse and a de facto partner.
What If There Is No Spouse?
If the deceased person does not leave a spouse or de facto partner, the estate will generally pass to other relatives in the following order.
Children
If there is no spouse, the deceased’s children are generally entitled to the estate in equal shares.
If a child of the deceased has already died, leaving children of their own, those children may take their parent’s share. This means grandchildren can inherit in place of their deceased parent.
Parents
If there is no spouse and no children, the deceased’s parents are next in line.
If both parents are alive, they usually share the estate equally.
Brothers and Sisters
If there is no spouse, no children and no surviving parents, the deceased’s siblings are next in line.
If a brother or sister has already died but left children, those children may inherit their deceased parent’s share.
Grandparents
If there are no eligible spouses, children, parents or siblings, the estate may pass to grandparents.
Aunts, Uncles and First Cousins
If there are no closer relatives, the estate may pass to aunts and uncles.
If an aunt or uncle has died leaving children, those children, being first cousins of the deceased, may inherit in their place.
What If There Are No Eligible Relatives?
If there are no eligible relatives under the intestacy rules, the estate may ultimately pass to the NSW Government.
This is usually a last resort. The law looks through the categories of eligible relatives before the estate passes to the State.
Does a Stepchild Inherit If There Is No Will?
A stepchild does not automatically inherit under the NSW intestacy rules simply because they were close to the deceased.
This can produce unfair outcomes.
For example, a stepchild may have been raised by the deceased from a young age, lived with them for many years, and regarded them as a parent. However, unless the stepchild falls within a legally recognised category, they may not receive anything under intestacy.
That does not necessarily mean the stepchild has no options. In some circumstances, a stepchild may be eligible to make a family provision claim if they can show the necessary relationship, dependency or other qualifying factors.
Does a De Facto Partner Inherit?
A de facto partner may be treated as a spouse for the purposes of intestacy if the relationship satisfies the relevant legal requirements.
However, disputes commonly arise about whether a de facto relationship actually existed.
These disputes often occur where:
- the relationship was relatively new;
- the deceased remained legally married to someone else;
- the couple did not live together full time;
- finances were kept separate;
- family members did not know about the relationship;
- one party says the relationship was casual; or
- there is disagreement about when the relationship started or ended.
If there is a dispute about whether someone was the deceased’s de facto partner, legal advice should be obtained early.
What Assets Are Included in an Intestate Estate?
The intestacy rules only apply to assets that form part of the deceased estate.
Not every asset automatically forms part of the estate.
Assets that may form part of the estate include:
- bank accounts in the deceased’s sole name;
- real estate owned solely by the deceased or as tenant in common;
- personal belongings;
- shares;
- managed funds;
- business interests;
- vehicles; and
- debts owed to the deceased.
However, some assets may pass outside the estate, such as:
- jointly owned property held as joint tenants;
- superannuation death benefits, depending on the trustee’s decision or any binding nomination;
- life insurance paid directly to a nominated beneficiary;
- assets held in a company or trust; and
- jointly held bank accounts in some circumstances.
This is important because a person may appear to have a large estate, but many assets may pass outside the estate. Conversely, a person may die without a Will and leave significant estate assets that must be administered under the intestacy rules.
Can Someone Contest an Estate If There Is No Will?
Yes.
A family provision claim can still be made where there is no Will.
In NSW, eligible persons may apply to the Court for provision, or further provision, from a deceased estate if they believe they have not been adequately provided for.
This means that even if the intestacy rules say who receives the estate, an eligible person may still be able to challenge the outcome.
Family provision claims may be made by eligible persons such as:
- a spouse;
- a de facto partner;
- a child;
- a former spouse;
- a person who was wholly or partly dependent on the deceased and was a member of the deceased’s household;
- a grandchild who was wholly or partly dependent on the deceased; or
- a person who was living in a close personal relationship with the deceased at the time of death.
Whether a claim should be made depends on the circumstances, including the size of the estate, the applicant’s financial position, the relationship with the deceased, competing claims, and any obligations the deceased had to others.
Common Problems When Someone Dies Without a Will
Dying without a Will can create several practical and legal problems.
Delay
Without a Will, there is no named executor. Someone must apply to the Court for authority to administer the estate.
This can delay access to estate funds, sale of property, payment of debts, and distribution to beneficiaries.
Disputes About Who Should Administer the Estate
Family members may disagree about who should apply for Letters of Administration.
For example, siblings may not trust each other, a surviving spouse may be in conflict with adult children, or there may be uncertainty about who has the greatest entitlement.
In serious cases, the Court may need to appoint an independent administrator.
Unfair Outcomes
The intestacy rules are rigid. They do not take into account verbal promises, estrangement, moral obligations, or what the deceased may have intended.
For example:
- a long-term friend who cared for the deceased may receive nothing;
- a stepchild may receive nothing;
- an estranged child may receive a share;
- a new spouse may receive most or all of the estate;
- children from a previous relationship may receive less than expected; or
- a person who was financially dependent on the deceased may need to bring a claim.
Blended Family Disputes
Blended families are particularly vulnerable to intestacy disputes.
A common scenario is where a person dies leaving a second spouse and children from an earlier relationship. The spouse and children may have very different expectations about who should receive the estate.
These cases often involve emotional and financial tension because the surviving spouse may need security, while the children may be concerned that family wealth has moved away from them.
De Facto Relationship Disputes
Where a person claims to have been the deceased’s de facto partner, other family members may dispute the relationship.
This can affect both who administers the estate and who receives it.
Superannuation Disputes
Superannuation often does not automatically form part of the estate. If there is no valid binding death benefit nomination, the superannuation trustee may decide who receives the death benefit.
This can lead to separate disputes about superannuation, particularly between spouses, de facto partners, children and financial dependants.
Example 1: Married Couple With Children Together
John dies without a Will. He leaves a wife, Mary, and two children from his marriage to Mary.
Under the intestacy rules, Mary will generally receive the whole estate.
The children do not receive a separate share under intestacy because they are also Mary’s children.
Example 2: Second Marriage and Adult Children
Robert dies without a Will. He leaves a second wife, Anne, and two adult children from his first marriage.
In this situation, Anne may be entitled to Robert’s personal effects, the statutory legacy, and half of the remainder of the estate. Robert’s children share the other half of the remainder.
Depending on the size and structure of the estate, this may leave the children with much less than they expected.
Example 3: No Spouse and No Children
Maria dies without a Will. She was not married, had no de facto partner and had no children. Her parents are alive.
In that case, Maria’s parents will generally share the estate equally.
Example 4: Close Friend Who Provided Care
David dies without a Will. He had no spouse or children, but his close friend cared for him for many years.
Unless the friend falls within an eligible category, the friend may not inherit under intestacy. However, depending on the facts, the friend may need advice about whether they are eligible to make a family provision claim or another type of claim.
What Should You Do If a Family Member Dies Without a Will?
If someone dies without a Will, the first steps are usually to:
- confirm that there is no valid Will;
- identify the deceased’s assets and liabilities;
- identify surviving relatives;
- determine who is entitled under intestacy;
- decide who should apply for Letters of Administration;
- consider whether there are any disputes about entitlement;
- consider whether any family provision claim may be made; and
- obtain legal advice before distributing the estate.
It is important not to distribute the estate too early, particularly if there may be a dispute or family provision claim.
Can Intestacy Be Avoided?
Yes.
The best way to avoid intestacy is to make a valid Will and keep it updated.
A Will allows you to choose:
- who receives your estate;
- who acts as executor;
- who receives particular assets;
- what happens if a beneficiary dies before you;
- how blended family issues are managed;
- whether testamentary trusts should be included;
- guardianship arrangements for minor children; and
- how your estate should be administered.
A properly prepared Will can reduce uncertainty, delay, cost and family conflict.
Final Thoughts
If someone dies without a Will in NSW, their estate is not distributed according to what they may have said, promised or intended. It is distributed according to the intestacy rules in the Succession Act 2006 (NSW).
Those rules may work adequately for some simple family situations, but they can create significant problems in blended families, estranged family situations, and cases involving financial dependency.
If a loved one has died without a Will, it is important to obtain legal advice before taking steps to administer or distribute the estate.
At PB Ritz Lawyers, we assist clients with estate disputes, family provision claims, Letters of Administration disputes, contested estates and complex intestacy matters in NSW.
Call (02) 8066 9990 or send us an email at mail@pbritz.com.au to discuss how we can be of assistance to you.
