Overview
Topics Covered:
- What is intestacy?
- Key legal variations across states and territories
- Distribution rules under typical scenarios
- Special considerations for stepchildren or non-blood relatives
- Risks associated with dying intestate
- Who can apply to administer the estate?
- Summary and legal advice
What Is Intestacy?
“Intestacy” refers to the legal situation where a person dies without leaving a valid will.
In such cases, the distribution of the deceased’s estate is governed by legislation, not by informal family agreements or the closeness of personal relationships. Each Australian state and territory have its own succession legislation (e.g. Succession Act 2006 (NSW)), but the guiding principle is generally the same: priority is given to relatives by blood or marriage/de facto relationship.
For tailored advice on applicable legislation, you should consult an estate planning solicitor.
State-by-State Legal Differences
Each jurisdiction (e.g. NSW, VIC, QLD, WA) has specific rules on intestate succession. Below is a general comparison:
| Jurisdiction | Spouse + No Children | Spouse + Children | No Spouse + Children |
| NSW | Spouse receives the entire estate | Spouse receives a statutory legacy (e.g. $350,000) plus a share of the remainder with children | Children share the estate equally |
| VIC | Same as above | Same as above | Same as above |
| QLD | Same as above | Same, with slight variation in amounts | Same as above |
| WA | Spouse has priority, but the rules are more complex | Statutory distribution between spouse and children | Same as above |
Note: The applicable rules depend on the deceased’s last place of residence. Always seek legal confirmation where necessary.
How Assets Are Distributed Without a Will (Common Scenarios)
Scenario 1: Married with No Children
- The surviving spouse inherits the entire estate.
Scenario 2: Married with Children
- In most states, the spouse is entitled to a statutory legacy (e.g., $350,000 in NSW), with the remainder divided between the spouse and children according to prescribed proportions.
Scenario 3: Unmarried with Children
- The children inherit the estate in equal shares.
Scenario 4: No Spouse and No Children
- The estate is distributed in the following order of priority:
Parents → Siblings → Grandparents → Aunts/Uncles → Cousins, and so on.
Scenario 5: No Surviving Relatives
- The estate is forfeited to the State or Territory Government under the principle of bona vacantia(ownerless property).
Scenario 6: Can Stepchildren or Non-Biological Children Inherit?
Generally, stepchildren and non-biological children have no automatic entitlement, unless:
- They were formally adopted by the deceased;
- They were financially dependent on the deceased and can provide evidence; or
- They make a Family Provision Claim under relevant legislation.
Case Example:
A (deceased) was married to B. B had a daughter, C, from a previous marriage. A did not adopt C and did not leave a will. C has no automatic right to inherit and must apply to the court under family provision laws, with no guarantee of success.
Important Note:
If you wish to leave assets to stepchildren, foster children, or children of a partner, you must specify this clearly in a valid will, or they may receive nothing.
Risks of Dying Intestate
- Lengthy court processes to appoint an administrator and distribute assets;
- Delays in asset distribution, often lasting several months or more;
- Potential for family disputes due to unclear entitlements;
- Higher legal and administrative costs;
- The deceased’s actual wishes are not considered—for instance, intended gifts to stepchildren, friends, or charities cannot be honoured.
Who Can Apply to Administer the Estate?
Without a will, there is no executor appointed by the deceased. Instead, the court appoints an estate administrator according to statutory priority—typically the closest next of kin (e.g., spouse or adult children).
Documents Required:
- Death certificate;
- Statement of assets and liabilities;
- Proof of relationship (e.g., birth or marriage certificate);
- Court application forms and filing fees.
Note: An administrator is not the same as an executor. The former is court-appointed in intestacy cases; the latter is nominated in a valid will.
Conclusion
Dying without a valid will can lead to complex and contentious outcomes. The absence of clear instructions can burden family members with costly and time-consuming legal processes, while also increasing the risk of disputes. To ensure that your estate is distributed in accordance with your personal wishes, it is essential to prepare a legally valid will.
If you have questions about estate planning, intestacy laws, or wish to draft a will, our bilingual team at Verge Legal can provide professional, culturally sensitive legal advice and representation. We are experienced in handling complex estates and can help you protect your assets and your family’s future.
Want to Know More?
If you’re wondering “Is a handwritten will valid in Australia?”, check out our companion article for a detailed analysis on the legal enforceability of handwritten wills and how to ensure your estate planning is watertight.