Died Without a Will - Intestacy Australia: Complete State-by-State Guide 2025 | WillBuddy

This comprehensive guide explains what happens when someone dies without a will in Australia (intestacy). We cover state-by-state distribution rules, real case law examples, and practical steps to avoid these complications.

What is Intestacy?

Intestacy occurs when a person dies without leaving a valid will. In Australia, each state and territory has legislation (typically a Succession Act) that determines who inherits the deceased's assets and in what proportions.

Key Point: Intestacy rules are "one size fits all", they don't consider the deceased's actual wishes, family relationships, or individual circumstances.

The main intestacy legislation by state:

• NSW: Succession Act 2006 (NSW)
• VIC: Administration and Probate Act 1958 (Vic)
• QLD: Succession Act 1981 (Qld)
• SA: Succession Act 2023 (SA) - recently updated
• WA: Administration Act 1903 (WA)
• TAS: Intestacy Act 2010 (Tas)

State-by-State Intestacy Distribution Tables

How the Statutory Legacy Works

Most states give the surviving spouse a statutory legacy (a set amount) plus a percentage of the remaining estate. These amounts are indexed and change over time: NSW recalculates each quarter and Victoria each 1 July, and the figure that applies is the one in force at the date of death. The amounts below are current as at mid-2025, so always confirm the current figure for your state.

NSW Intestacy Distribution

Under the Succession Act 2006 (NSW), Chapter 4:

Example (NSW): Sarah dies intestate with an estate worth $800,000. She has a husband John and two children from a previous marriage.

• John receives: $350,000 (statutory legacy) + 50% of $450,000 = $575,000
• Each child receives: 25% of $450,000 = $112,500

This example uses the $350,000 base figure for simple maths. In practice the indexed legacy (about $591,825 as at August 2025) applies and would increase the spouse's share.

VIC Intestacy Distribution

Under the Administration and Probate Act 1958 (Vic):

QLD Intestacy Distribution

Under the Succession Act 1981 (Qld):

De Facto Partners: Rights and Limitations

Who Qualifies as a De Facto Partner?

In most Australian states, a de facto partner (including same-sex partners) has the same intestacy rights as a married spouse if they meet certain criteria:

Important Limitations

Warning: In NSW and Tasmania, if the de facto relationship was less than 2 years AND the deceased had children from another relationship, the de facto partner may inherit nothing under intestacy rules.

This creates significant injustice in some cases. For example, a couple living together for 18 months with a newborn child may find the surviving partner receives nothing if the deceased had children from a previous marriage.

Solution: Create a valid will that explicitly provides for your de facto partner, regardless of how long you've been together.

Case Law: Intestacy and Family Provision Claims

Australian courts regularly hear disputes arising from intestacy. Here are key cases that illustrate how the law applies:

Singer v Berghouse [1994] HCA 40

This High Court of Australia case established the discretionary approach to family provision claims. The court confirmed that even under intestacy, eligible persons can apply for provision from an estate if the intestacy distribution does not make "adequate provision" for their proper maintenance, education, or advancement in life.

Key Principle: Courts consider the applicant's financial needs, the size of the estate, the relationship with the deceased, and claims of other beneficiaries.

Read the full judgment on AustLII

Robinson v Glennon [2025] NSWSC 770

In this recent NSW case, the court granted a family provision claim from an intestate estate. The deceased's sister held Letters of Administration and would have inherited the entire estate under intestacy (s.129 Succession Act).

Key Principle: Brereton J found that partial dependency was sufficient to grant a claim. Evidence of intermittent accommodation, domestic assistance, and emotional reliance over a decade established a relationship of dependency, even without financial support.

This case confirms that dependency arises in diverse and non-traditional relationships.

NSW Caselaw

Salmon v Osmond [2015] NSWCA 42

The NSW Court of Appeal confirmed the discretionary approach to family provision matters. This case illustrates that courts consider all circumstances, not just financial need.

Haertsch v Whiteway (No 2) [2020] NSWCA 287

Another Court of Appeal case confirming the broad discretion courts have in family provision matters, even when intestacy rules would otherwise apply.

Real-World Examples: What Intestacy Looks Like

Example 1: The Blended Family Nightmare

Situation: Michael (55) dies suddenly without a will. He has a wife Lisa and two adult children from his first marriage. His estate is worth $1.2 million (including the family home worth $900,000).

Under NSW Intestacy:

• Lisa receives: $350,000 + 50% of $850,000 = $775,000
• Each child receives: 25% of $850,000 = $212,500

The Problem: Lisa cannot afford to "buy out" the children's share of the home and may be forced to sell the family home to distribute their inheritance. The children expected to inherit the home eventually but now want their share immediately.

With a Will: Michael could have given Lisa a life interest in the home (right to live there until death), with the children inheriting afterward. Everyone's needs would be met without forcing a sale.

Example 2: The Forgotten De Facto Partner

Situation: James (32) dies in a car accident. He has been living with his partner Emma for 18 months. They have a 3-month-old baby together. James also has a 7-year-old daughter from a previous relationship. His estate is worth $400,000.

Under NSW Intestacy:

• Emma receives: $0 (less than 2 years de facto)
• James's daughter receives: $400,000 (100%)
• The baby is provided for by the daughter's share (per stirpes)

The Problem: Emma, who was James's primary partner and mother of his newborn child, inherits nothing. She may need to make a family provision claim at significant legal expense.

With a Will: James could have ensured Emma was provided for, with appropriate provisions for both children.

Example 3: No Immediate Family

Situation: Patricia (78) dies without a will. She never married and had no children. Her parents died years ago, and she has no siblings. Her estate is worth $600,000.

Under Intestacy:

• First, authorities search for grandparents (deceased), aunts/uncles (deceased), then cousins
• If cousins are found: They share the estate equally
• If no relatives found: The estate passes to the Crown (state government)

The Problem: Patricia's closest friends who cared for her in her final years receive nothing. Distant relatives she never met may inherit everything.

The Administration Process Without a Will

Step 1: Identify the Eligible Administrator

Without an executor named in a will, someone must apply to become the administrator. The priority order is:

1. Surviving spouse or de facto partner
2. Children of the deceased
3. Parents
4. Siblings
5. Other next of kin

Step 2: Apply for Letters of Administration

The administrator must apply to the Supreme Court of the relevant state. Requirements include:

• Death certificate
• Inventory of assets and liabilities
• Renunciations from higher-priority persons (if applicable)
• Court filing fees ($300-$1,000 depending on state and estate size)

Step 3: Gather and Manage Assets

Once Letters of Administration are granted, the administrator can:

• Access bank accounts
• Sell or transfer property
• Deal with superannuation funds
• Manage investments

Step 4: Pay Debts and Distribute

The administrator must:

1. Pay all valid debts of the deceased
2. Pay funeral expenses
3. Set aside funds for ongoing costs
4. Distribute the remainder according to intestacy rules

Timeline Comparison

How to Avoid Intestacy Problems

The only way to ensure your assets are distributed according to your wishes is to create a valid will. Here's what a good will should include:

1. Clear beneficiary designations - Who gets what, including backup beneficiaries
2. Executor appointment - Someone you trust to manage your estate
3. Guardian nominations - For minor children
4. Specific bequests - Particular items for particular people
5. Residuary clause - What happens to everything else

Special Considerations

• Superannuation: Review your binding death benefit nomination
• Joint assets: Understand how joint tenancy vs tenants in common affects distribution
• Trusts: Consider testamentary trusts for tax benefits or to protect vulnerable beneficiaries
• Life insurance: Check beneficiary nominations on all policies

Next Steps

Don't leave your family to navigate intestacy rules. A valid will ensures your wishes are respected and reduces stress during an already difficult time.

Related Articles:

• Probate Process in Australia - Understanding court requirements
• Estate Administration Guide - Step-by-step executor duties
• How to Make a Will - Creating your will

Ready to create your will? Get started with WillBuddy - our AI-guided platform makes it simple to create a legally valid will tailored to Australian law.

Legislation and Official Resources

Will-making in Australia is governed by each state and territory's own succession legislation. The core statutes include:

• New South Wales: Succession Act 2006 (NSW)
• Victoria: Wills Act 1997 (Vic)
• Queensland: Succession Act 1981 (Qld)
• South Australia: Succession Act 2023 (SA)
• Western Australia: Wills Act 1970 (WA)
• Tasmania: Wills Act 2008 (Tas)
• Australian Capital Territory: Wills Act 1968 (ACT)
• Northern Territory: Wills Act 2000 (NT)

Because requirements differ between states and are amended over time, always confirm the current rules for your state, or seek advice from a qualified legal professional.

Last updated: November 2025. This article provides general information only and does not constitute legal advice. For complex estates or disputed matters, consult a qualified solicitor in your state.