Intestacy Laws Australia: What Happens If You Die Without a Will?

What Is Intestacy?

Intestacy is the legal term for dying without a valid Will. When someone dies intestate in Australia, a rigid set of government rules determines who inherits their assets — not the person themselves, not their family, and not their closest friends.

These rules are called intestacy laws, and they exist in every Australian state and territory. They were designed as a safety net, but in practice they often produce results that are unfair, unexpected, and deeply distressing for the people left behind.

Here is the reality: according to recent surveys, over half of Australian adults do not have a valid Will. That means more than 10 million people are currently leaving their estate in the hands of a formula written by Parliament.

Intestacy does not only affect people who never made a Will. It can also occur when:

• A Will exists but is invalid (not properly signed or witnessed)
• A Will was revoked by marriage and never replaced
• A Will does not cover all assets (partial intestacy)

If any of these situations apply to you, intestacy laws will decide what happens to some or all of your estate. This guide explains exactly how those laws work, state by state, and what you can do to protect your family.

What Happens When You Die Without a Will in Australia?

When a person dies intestate, several things happen — none of them quickly:

1. No executor exists. Without a Will, there is nobody authorised to manage the estate. A family member must apply to the court for Letters of Administration, a process that can take weeks or months.

2. The court appoints an administrator. This person manages the estate, but they have less flexibility than a named executor. They must follow the intestacy formula precisely.

3. Assets are frozen. Bank accounts, property, and investments cannot be accessed until the administrator is formally appointed. This can leave dependants without financial support during a critical period.

4. The intestacy hierarchy determines distribution. The government’s predetermined formula decides who inherits, in what proportion, regardless of the deceased person’s actual wishes or relationships.

5. Disputes are common. Without clear instructions in a Will, family members often disagree about who should administer the estate and how assets should be handled. These disputes can escalate into costly legal battles.

Intestacy vs Having a Will

Intestacy Rules by State and Territory

Every Australian state and territory has its own intestacy legislation. While the broad hierarchy is similar, the specific rules — particularly the statutory legacy (the fixed amount a surviving spouse receives before the estate is divided further) — differ significantly.

*In NSW, if the deceased’s children are also children of the surviving spouse, the spouse inherits the entire estate. If there are children from another relationship, the spouse receives personal effects, a statutory legacy, and 50% of the residue.

Important: These figures are approximate and subject to legislative updates. The state where the deceased was domiciled (permanently resident) at death determines which laws apply — not where the assets are located.

Who Inherits Under Intestacy Laws?

All Australian jurisdictions follow a similar hierarchy. If a person in one tier is alive, the tiers below them receive nothing.

Tier 1: Spouse or De Facto Partner

The surviving spouse or recognised de facto partner (including same-sex partners) is first in line. In most states, they receive:

• Personal effects (clothing, furniture, household items)
• A statutory legacy (a fixed dollar amount — see table above)
• A share of the remaining estate, which may be split with children

If the deceased had children from a previous relationship, the surviving partner’s share is typically reduced.

Tier 2: Children

If there is no surviving spouse, children inherit the entire estate in equal shares. This includes:

• Biological children
• Legally adopted children
• In some states, stepchildren who were part of the household

If a child has already died but left children of their own (the deceased’s grandchildren), those grandchildren inherit their parent’s share. This is called distribution per stirpes.

Tier 3: Parents

If the deceased had no spouse, partner, or children, the estate passes to their parents equally (or to one parent if the other has died).

Tier 4: Siblings

If no parents survive, brothers and sisters inherit equally. If a sibling has died, their children (the deceased’s nieces and nephews) take their share.

Tier 5: Extended Family

The hierarchy continues outward — grandparents, then aunts and uncles, then first cousins — with each tier only inheriting if all higher tiers are exhausted.

Tier 6: The Government (Bona Vacantia)

If absolutely no eligible relatives can be found, the entire estate passes to the state or territory government. This is called bona vacantia (“ownerless goods”). While rare, it does happen — particularly for people who were estranged from their families.

Common Intestacy Scenarios with Examples

The intestacy formula may seem logical in theory. In practice, it frequently produces results that are unfair, painful, and contrary to what the deceased would have wanted.

Scenario 1: Married with Children

Mark and Sophie are married with two children, aged 12 and 15. Mark dies without a Will in Queensland. Under QLD intestacy laws, Sophie receives Mark’s personal effects, $150,000, and half of the remaining estate. The other half is divided equally between the two children.

The problem: The children’s share is held in trust until they turn 18 — but Sophie cannot easily access those funds for school fees, medical bills, or daily expenses without court approval. With a Will, Mark could have left everything to Sophie outright, trusting her to provide for the children.

Scenario 2: De Facto Relationship with Children

Tom and Rachel have been living together for seven years and have a three-year-old daughter. They never married. Tom dies suddenly without a Will in Western Australia.

The problem: Rachel must prove the de facto relationship before she can claim anything. Tom’s parents, who never approved of Rachel, contest her claim. The dispute takes 16 months and costs $35,000 in legal fees — money that comes directly out of the estate their granddaughter will eventually inherit.

With a valid Will, Tom could have named Rachel directly. No proof of relationship required.

Scenario 3: Single with No Children, Parents Alive

Daniel, 34, is single with no children. He is close to his mother, Margaret, but estranged from his father, Keith, after a difficult childhood. Daniel dies intestate in Victoria.

The problem: Under VIC intestacy laws, Margaret and Keith each inherit 50% of the estate. Daniel’s wish to leave everything to his mother is irrelevant without a Will. Keith — who Daniel had not spoken to in 12 years — receives half.

Scenario 4: Blended Families

Jenny has two children from her first marriage (aged 20 and 22) and is in a de facto relationship with Carlos, who has one child of his own (aged 16). Jenny wants Carlos and all three children to benefit from her estate.

The problem: Under intestacy, Carlos receives a statutory legacy and a share of the residue. Jenny’s biological children share the remainder equally. Carlos’s child inherits nothing — stepchildren are not recognised as beneficiaries under intestacy laws in most Australian states.

Jenny could have solved this in 15 minutes with a Will that names all three children as beneficiaries. See how it works. For more guidance on this situation, read our guide to estate planning for blended families.

Problems with Dying Intestate

Court Administration Costs

Without a named executor, someone must apply to the court for Letters of Administration. Filing fees, legal costs, and potential administration bonds can cost $5,000 to $15,000 before any distribution even begins — and significantly more for contested estates.

Family Disputes

When there are no clear instructions, families argue. Who should be the administrator? Should the house be sold or kept? What about items with sentimental value? These disagreements can fracture families permanently and generate legal fees that consume a significant portion of the estate.

Delays in Distribution

A straightforward estate with a valid Will is typically settled in 3 to 6 months. An intestate estate — particularly one with de facto relationship disputes, blended family complications, or missing relatives — can take 12 months to several years.

During this time, dependants may be unable to access funds for rent, mortgages, school fees, or basic living expenses.

Unintended Beneficiaries

Intestacy cannot distinguish between a beloved parent and an estranged one, between a supportive sibling and one you have not spoken to in decades. The formula treats all relationships within a tier as equal, regardless of the actual quality of those relationships.

Close friends, long-term carers, stepchildren, and charities receive nothing under intestacy — no matter how important they were to the deceased.

How Intestacy Affects Superannuation

Your superannuation balance is not covered by your Will and is not distributed under intestacy laws. Instead, the super fund trustee decides who receives your death benefit, guided by the fund’s rules and superannuation law.

The trustee will typically consider:

• Your nominated beneficiaries (if any)
• Your dependants (spouse, children, financial dependants)
• Your legal personal representative (your estate)

The risk: Without a binding death benefit nomination, the trustee has discretion to distribute your super balance however they see fit — which may not match your wishes.

For example, if you have an ex-spouse who is still listed as a beneficiary on your super fund, the trustee may direct funds to them rather than your current partner.

How to Protect Your Super

1. Check your current nomination — log into your super fund and review who is listed
2. Make a binding death benefit nomination — this legally directs the trustee to pay your benefit to your chosen beneficiaries
3. Review it regularly — binding nominations typically lapse every 3 years (non-lapsing options exist with some funds)
4. Coordinate with your Will — ensure your super nominations and your Will work together as part of a complete estate plan

For a detailed guide, see our resource on superannuation and estate planning.

How to Avoid Intestacy

The solution is simple: create a valid Will.

A valid Will in Australia requires:

• Writing — the Will must be a physical or printed document
• Your signature — signed at the end of the document
• Two independent adult witnesses — both present when you sign, both signing in your presence
• Testamentary capacity — you must understand what you are doing and the extent of your assets

Beyond these basics, a comprehensive Will should:

• Name an executor (and a backup executor)
• Identify all beneficiaries and their specific entitlements
• Appoint guardians for minor children
• Address specific gifts, the residual estate, and contingency plans
• Be reviewed after major life events — marriage, divorce, birth of a child, property purchase

What Does It Cost?

With ezyWill, you can create a legally valid Will online in about 15 minutes. The guided questionnaire covers every section — executors, beneficiaries, guardians, specific gifts, and more — tailored to your Australian state or territory.

No legal jargon. No appointments. No surprise fees.

Create your Will now and take your estate out of the government’s hands.

Frequently Asked Questions

What does intestate mean in Australia?

Intestate means dying without a valid Will. When this happens, your estate is distributed according to your state or territory’s intestacy laws — a fixed government formula based on family relationships. You have no say in who inherits, and the process is typically slower and more expensive than administering an estate with a Will.

Who inherits if you die without a Will in Australia?

Your estate is distributed according to a strict hierarchy: surviving spouse or de facto partner first, then children, then parents, then siblings, then extended family. If no eligible relatives can be found, the estate passes to the state government. Friends, stepchildren, and charities receive nothing under intestacy.

Does a de facto partner inherit under intestacy laws?

Yes, all Australian states and territories recognise de facto partners (including same-sex partners) for intestacy purposes. However, the surviving partner may need to prove the relationship through legal proceedings, which can be contested by other family members. A valid Will avoids this entirely.

What happens to my super if I die without a Will?

Your superannuation is not governed by your Will or by intestacy laws. The super fund trustee decides who receives your death benefit based on your nominations and the fund’s rules. Without a binding death benefit nomination, the trustee has full discretion — which may not align with your wishes.

How long does it take to settle an intestate estate?

An intestate estate typically takes 12 to 24 months to settle, compared to 3 to 6 months for an estate with a valid Will. Contested estates involving de facto relationship disputes or blended family complications can take several years.

Can I contest an intestate distribution?

Yes. Eligible persons can make a family provision claims if they believe they have not been adequately provided for under intestacy distribution. Eligible claimants vary by state but typically include spouses, children, and dependants. Time limits range from 3 months (Tasmania) to 12 months (NSW, NT) from death or grant of probate.

Does marriage affect intestacy laws?

Yes, in two important ways. First, marriage revokes an existing Will in most states (except SA and ACT), which can create unintentional intestacy. Second, under intestacy laws, a married spouse has priority in the distribution hierarchy. If you have recently married, you should create a new Will immediately.

What happens if I die without a Will and have no family?

If no eligible relatives can be found anywhere in the intestacy hierarchy, your entire estate passes to the state or territory government under a rule called bona vacantia (“ownerless goods”). Any friends, carers, or charities you may have wanted to benefit receive nothing.

Is it expensive to die without a Will?

Yes. Court application fees, administrator appointment costs, potential administration bonds, and higher legal fees for contested estates can cost $5,000 to $50,000+. By comparison, creating a Will with ezyWill costs $99 per year and can prevent the vast majority of these costs.

How do I create a Will to avoid intestacy?

The simplest way is to create your Will online with ezyWill. The guided questionnaire takes about 15 minutes, covers all legally required sections, and generates a Will compliant with your state’s legislation. Print it, sign it with two witnesses, and you are protected.

This article is for general informational purposes only and does not constitute legal advice. Intestacy laws differ between Australian states and territories and are subject to change. For advice on your specific circumstances, we recommend consulting a qualified solicitor. ezyWill provides legally structured Will templates tailored to Australian state and territory requirements.