Dying Without a Will in Australia: Who Gets What
General information, not legal advice.
On this page
- What is Intestacy?
- State-by-State Intestacy Distribution Tables
- De Facto Partners: Rights and Limitations
- Family Provision Claims Against Intestate Estates
- Worked Examples: What Intestacy Could Look Like
- The Administration Process Without a Will
- How to Avoid Intestacy Problems
- Next Steps
- Legislation and Official Resources
Quick answer
When someone dies without a valid will (intestate) in Australia, their estate is distributed under state intestacy legislation rather than their own wishes. The spouse or de facto partner usually has first priority, followed by children, parents, and more distant relatives.
- Fixed formula: Distribution follows a statutory legacy plus a share of the remainder, varying by state, not the deceased's intentions.
- De facto risk: In NSW and Tasmania, a de facto partner of under 2 years with no child of the relationship may not qualify as a spouse for intestacy and can inherit nothing.
- Slower process: Intestate administration can take longer and requires Letters of Administration rather than probate.
- The fix: A valid will lets you name beneficiaries, an executor, and guardians, avoiding these complications entirely.
This comprehensive guide explains what happens when someone dies without a will in Australia (intestacy). We cover state-by-state distribution rules, worked 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), in operation since 1 January 2025
- WA: Administration Act 1903 (WA)
- TAS: Intestacy Act 2010 (Tas)
- ACT: Administration and Probate Act 1929 (ACT)
- NT: Administration and Probate Act 1969 (NT)
State-by-State Intestacy Distribution Tables
Key point
Most states give a surviving spouse a set statutory legacy plus a percentage of the remainder, and the amount varies by state and in some states is updated over time (Queensland is a fixed $150,000, while NSW, Victoria and Western Australia use larger amounts that are updated), so a spouse may share the estate with children rather than inherit it all (in Queensland, South Australia, WA, the ACT and the NT this can happen even when all the children are also the spouse's).
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 adjusts for inflation and Victoria indexes its amount each year, and the figure that applies is the one in force at the date of death. The amounts below are the figures set in the legislation where we have verified them; where a figure is indexed, the amount that applies is higher, so always confirm the current figure for your state.
| State | Statutory Legacy (figure in the legislation) | When It Applies |
|---|---|---|
| NSW | $350,000 base, CPI-indexed (s106 Succession Act 2006) | When spouse and children from different relationship |
| VIC | A fixed statutory amount, indexed each year (Administration and Probate Act 1958); confirm the current amount | When partner and children from another relationship; plus half of the rest |
| QLD | $150,000 plus household chattels | Whenever there is a spouse and children (whether or not the children are the spouse's); plus 1/2 of the rest for one child, 1/3 for more |
| SA | $120,000 preferential legacy, or a higher amount if one is set for the financial year of death (none had been set as at 5 October 2026) (s105 Succession Act 2023) | When spouse or domestic partner and children; the whole estate if it is worth no more than the legacy, otherwise the legacy plus half the balance |
| WA | $546,000 for deaths on or after 5 July 2025, set by ministerial order and reviewed every two years, plus interest at 5% a year and household chattels (s14, s14A Administration Act 1903; Administration (Intestacy Legacy Amounts) Order 2025) | When spouse and children (whether or not they are the spouse's); the whole estate if the net estate excluding household chattels is $546,000 or less, otherwise the sum plus 1/3 of the rest (1/2 if only one child or one child's descendants). With no children but a parent or sibling, the sum is $815,500 plus 1/2 of the rest |
| TAS | $350,000 base, CPI-indexed (s7 Intestacy Act 2010) | When spouse and issue not of that partner |
| ACT | $200,000 plus interest at 8% a year, plus personal chattels (s49A and Schedule 6, Administration and Probate Act 1929 (ACT)) | When partner and descendants (whether or not they are the partner's); the whole estate if it is worth $200,000 or less, otherwise the legacy plus 1/2 of the rest (one child or one child's descendants) or 1/3 |
| NT | A prescribed amount set by regulation (Administration and Probate Act 1969 (NT)); confirm the current amount | When spouse and descendants; the whole estate if it is not more than the prescribed amount, otherwise the prescribed sum plus 1/2 of the rest (one child's line) or 1/3 |
NSW Intestacy Distribution
Under the Succession Act 2006 (NSW), Chapter 4:
| Scenario | Distribution |
|---|---|
| Spouse only, no children | Spouse receives entire estate |
| Spouse + children (all from this relationship) | Spouse receives entire estate |
| Spouse + children (some from previous relationship) | Spouse receives personal effects + statutory legacy ($350,000 base, CPI-indexed) + 50% of remainder; Children share the other 50% equally |
| No spouse, children only | Children share entire estate equally |
| No spouse or children | Parents share equally; if no parents → siblings; if no siblings → grandparents → aunts/uncles → cousins |
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 CPI-indexed legacy applies and would increase the spouse's share.
VIC Intestacy Distribution
Under the Administration and Probate Act 1958 (Vic):
| Scenario | Distribution |
|---|---|
| Partner only, no issue | Partner receives entire estate |
| Partner + issue (all from this relationship) | Partner receives entire estate |
| Partner + issue (some from other relationship) | Partner receives the statutory legacy (a fixed amount, indexed each year) + 50% of remainder + personal chattels; Issue share the other 50% |
| No partner, issue only | Issue share entire estate equally (per stirpes) |
| No partner or issue | Parents → siblings → grandparents → aunts/uncles |
QLD Intestacy Distribution
Under the Succession Act 1981 (Qld):
| Scenario | Distribution |
|---|---|
| Spouse only, no children | Spouse receives entire estate |
| Spouse + children (all from this relationship) | Spouse receives $150,000 + household chattels + 1/2 of remainder (one child) or 1/3 (more than one child); Children share the rest |
| Spouse + children (from different relationship) | Same rule: spouse receives $150,000 + household chattels + 1/2 of remainder (one child) or 1/3 (more than one child); Children share the rest |
| No spouse, children only | Children share equally |
| No spouse or children | Parents → siblings → grandparents → aunts/uncles → cousins |
De Facto Partners: Rights and Limitations
Key point
In NSW and Tasmania, a de facto partner of under 2 years with no child of the relationship may not qualify as a spouse for intestacy and can inherit nothing, so a will is the only reliable way to provide for a partner regardless of how long you have been together.
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:
| State | Minimum Cohabitation Period | Additional Requirements |
|---|---|---|
| NSW | 2 years | Continuous de facto relationship, OR any period if it resulted in the birth of a child, OR a registered relationship |
| VIC | 2 years | Registered relationship OR 2 years cohabitation |
| QLD | 2 years | Continuous 2 years living together ending on death (no exception for a child of the relationship) |
| SA | Usually 3 years (or a child together), and a court declaration is needed | Counts only if a court has declared under the Family Relationships Act 1975 (SA) that they were the domestic partner at death, or the relationship was registered (s3 Succession Act 2023). The usual test is living together in a close personal relationship for 3 years (or 3 of the last 4), or having a child together; a court can also make the declaration in other cases if the interests of justice require it (Family Relationships Act 1975 (SA) s11A, s11B) |
| WA | 2 years | Lived together as de facto partners for at least 2 years immediately before death (s15 Administration Act 1903) |
| TAS | 2 years | Significant relationship, OR any period if it resulted in the birth of a child, OR a registered relationship |
| ACT | 2 years | Domestic partner at death for at least 2 continuous years, OR the parent of the deceased's child under 18 (s44) |
| NT | 2 years (in some cases) | Where none of the surviving descendants are also the partner's, a continuous 2 years immediately before death is needed; otherwise the partner generally shares like a spouse |
Important Limitations
Warning: In NSW and Tasmania, if the de facto relationship was less than 2 years AND did not result in the birth of a child (and was not registered), the de facto partner does not count as a spouse and may inherit nothing under intestacy rules.
This creates significant injustice in some cases. For example, a couple living together for 18 months with no child together may find the surviving partner receives nothing, with the estate passing to the deceased's 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.
Family Provision Claims Against Intestate Estates
Family provision laws apply to intestate estates as well as estates with a will. An eligible person who believes the intestacy distribution does not make adequate provision for their proper maintenance, education, or advancement in life can apply to the court for a greater share.
Key Principle: Courts generally consider the applicant's financial needs, the size of the estate, the relationship with the deceased, and the claims of other beneficiaries. The leading High Court case on how courts approach these claims is Singer v Berghouse.
Contested claims can be slow and expensive, which is one more reason to make a valid will.
Worked Examples: What Intestacy Could Look Like
These are hypothetical examples to show how the rules work. They are not real cases.
Example 1: A Blended Family
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
- (Figures use the $350,000 base for simple maths; the CPI-indexed legacy that actually applies is higher, which increases Lisa's share.)
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: A Recent De Facto Partner
Situation: James (32) dies in a car accident. He has been living with his partner Emma for 18 months. They have no children 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 and no child of the relationship, so she does not count as a spouse)
- James's daughter receives: $400,000 (100%)
If Emma and James had had a child together, Emma would count as a spouse even after 18 months (s105 Succession Act 2006) and, with an estate of this size, would likely take most or all of it.
The Problem: Emma, who was James's primary partner, inherits nothing. She may need to make a family provision claim, which can be costly.
With a Will: James could have ensured Emma was provided for, with appropriate provision for his daughter.
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:
- Surviving spouse or de facto partner
- Children of the deceased
- Parents
- Siblings
- 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 (set by each state and territory, often scaled to the estate value; check the Supreme Court registry for current fees)
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:
- Pay all valid debts of the deceased
- Pay funeral expenses
- Set aside funds for ongoing costs
- Distribute the remainder according to intestacy rules
Timeline Comparison
Administering an intestate estate often takes longer than administering an estate with a valid will, because someone must first apply for Letters of Administration and the court must be satisfied about who is entitled under the intestacy rules. A dispute about entitlements, or a family provision claim, can add considerably to the time.
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:
- Clear beneficiary designations - Who gets what, including backup beneficiaries
- Executor appointment - Someone you trust to manage your estate
- Guardian nominations - For minor children
- Specific bequests - Particular items for particular people
- 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
Before you print, WillBuddy shows you the signing steps for your state, so you and your two witnesses know what to do. A will must be signed and witnessed correctly to be formally valid, and WillBuddy cannot promise that any will is valid.
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
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.
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.
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Start my will freeLast updated 5 October 2026.
This article is general information only and is not legal advice. It is our best interpretation of the law as at 5 October 2026. WillBuddy is not a law firm, and it never replaces advice from a lawyer or solicitor. Laws change and differ between states and territories, so for your own circumstances, please get legal advice.