What Happens If You Die Intestate in NSW?

When someone passes away without leaving a valid will in New South Wales, they are considered to have died intestate. It’s a term that sounds quite formal, but what it really means is that their personal wishes for their assets become legally irrelevant. Instead, the government steps in with a rigid legal formula to decide who gets what, a process that can add a lot of stress and cost for the family left behind.

The Consequences of Dying Intestate in NSW

When a person dies intestate, a formal and often impersonal legal process kicks into gear, managed by the Supreme Court of NSW. Their entire estate—everything from their home and savings to their personal belongings—is effectively frozen. No one can touch or distribute these assets until the court officially appoints an administrator to take charge.

This administrator, who might not be the person the deceased would have trusted with the job, has a legal duty to follow a strict inheritance hierarchy. This formula is set out in the Succession Act 2006, and it doesn’t care about unique family dynamics, close friendships, or verbal promises made over the years. It’s purely black and white. For example, a verbal promise to leave a classic car to a lifelong friend holds no legal weight; the car simply becomes part of the estate to be distributed by law.

The Scale of the Problem in Australia

The tough reality is that so many of us are unprepared for this. It’s estimated that around 50% of Australian adults don’t have a will. That means half the population is at risk of having their life’s work divided up by state law, not by their own choice.

This lack of planning often leads to the estate’s value shrinking by 15-30% due to legal fees, court costs, and sometimes forced sales of assets just to settle everything.

It's also worth remembering that some assets, like jointly owned property, might pass to the surviving owner automatically. This is a separate legal concept, and understanding the right of survivorship can help clarify how this works outside of the normal intestacy rules.

A will is your voice after you're gone. Without it, the law speaks for you, and its decisions might not align with what you or your family would have wanted.

To give you a clearer picture, here’s a quick look at the major differences between dying with and without a will in NSW.

Key Consequences of Dying Intestate in NSW

Area of Impact	What Happens Without a Will (Intestate)	What Happens With a Valid Will
Control Over Assets	The law dictates who inherits based on a rigid formula. Your personal wishes are not considered.	You decide exactly who inherits your assets and in what proportion.
Executor of the Estate	The court appoints an administrator, who may not be someone you would have chosen.	You appoint an executor you trust to carry out your wishes and manage your estate.
Cost and Time	The process is often longer, more complex, and more expensive due to legal and court fees.	The process is generally faster and more straightforward, reducing costs for your family.
Family Stress	Grieving loved ones must navigate a complicated legal system, which can cause conflict and uncertainty.	Your family has a clear roadmap, which minimises stress and potential disputes.
Care for Dependants	The court decides on guardianship for minor children, which may not align with your wishes.	You can nominate a guardian for your children, ensuring they are cared for by someone you choose.

As you can see, the absence of a will creates a ripple effect of challenges that extend far beyond just financial matters.

How Intestacy Impacts Your Loved Ones

The consequences aren't just about money; they're deeply emotional. At the worst possible time, your family is forced to deal with a complex legal system while they are grieving. It creates a heavy cloud of uncertainty and tension.

Worse still, it can lead to disputes between relatives who might disagree with the state’s cold, predetermined outcomes. For instance, a long-term de facto partner may have to go to court just to prove their relationship existed. Step-children you raised and loved as your own might end up with nothing at all.

This rigid process strips away your control and can place an immense emotional and financial strain on the people you care about most. Thinking about these legal complexities is important, but so is easing other burdens. Pre-planning final arrangements through our No Service No Attendance, Affordable Cremation, Complete Cremation Service, or Traditional Funeral Service cremation packages, detailed on our Services page, can provide significant relief for your family, both emotionally and financially.

The Legal Pecking Order of NSW Intestacy

When someone passes away without a will in NSW, they don't get a say in who inherits their estate. Instead, the law steps in with a rigid, one-size-fits-all plan called the Succession Act 2006. Think of it as a strict legal pecking order, where the law dictates the line of succession based on a predetermined family tree, not on your personal relationships or wishes.

This hierarchy prioritises your closest relatives in a very specific sequence, ensuring your assets are passed down a set path. While it’s designed to be fair, it often fails to account for the unique and complex nature of modern families.

Spouse or Partner at the Top

The first person the law looks for is a surviving spouse or de facto partner. If you have a partner but no children, it’s quite straightforward: your partner is entitled to your entire estate. This reflects what most people would probably want anyway.

Things get a little more complex when children are involved, especially if they are from different relationships. In these situations, the law has specific rules to try and balance the needs of your current partner with the inheritance rights of your children.

Here’s a simplified visual guide to how this inheritance order works.

As the chart shows, a spouse sits at the top, followed by children. If there are no closer relatives, it then moves to the parents of the deceased.

When Children Are Involved

The rules for distributing the estate change depending on whose children they are. Let’s walk through the two most common scenarios you might face.

Scenario 1: Partner and Children from That Same Relationship

If you leave behind a spouse or partner, and all your children are also the children of that same partner, the law keeps it simple. Your partner inherits 100% of your estate. The assumption here is that your partner will naturally provide for your shared children. For example, if Maria dies intestate leaving her husband, David, and their two children, David inherits everything.

Scenario 2: Partner and Children from a Previous Relationship

This is where it can get complicated and often leads to unexpected outcomes. If you have children from a previous relationship, your surviving partner doesn't automatically get everything. The law attempts to protect both your current partner and your children.

In this case, your surviving partner is entitled to:

Your personal effects (things like furniture, jewellery, and cars).
A "statutory legacy," which is a large, fixed sum of money.
Half of whatever is left of your estate after those first two entitlements are paid out.

Your children from the previous relationship (and any children you might have with your current partner) will then share the remaining half of the estate equally.

The statutory legacy acts as a financial safeguard for your surviving partner. It’s designed to ensure they receive a significant, protected portion of the estate before any assets are divided among children from other relationships.

Understanding the Statutory Legacy

The statutory legacy is a key part of NSW intestacy law, and it's not a small amount. It's a substantial sum designed to provide real financial security for the surviving partner, and the figure is indexed quarterly to keep pace with inflation.

To give you an idea, as of July to September 2025, the NSW statutory legacy is $591,825.78. If your estate was worth $1 million, your partner would receive this amount plus half of the remainder, which can dramatically change what’s left for your children.

Who Is Considered an Eligible Relative?

The law has very clear definitions for who qualifies as a relative, and these legal definitions can sometimes lead to heartbreaking outcomes for those left out.

De Facto Partners: A de facto partner has the same inheritance rights as a married spouse. However, the relationship usually needs to meet certain criteria, like living together for at least two years or having a child together. Proving this can sometimes require legal action, adding more stress for a grieving partner.
Adopted Children: Legally adopted children are treated exactly the same as biological children and have full inheritance rights.
Stepchildren: This is a critical one that many people overlook. Stepchildren are not automatically included in the line of succession. No matter how close your relationship was, they have no legal right to inherit unless you formally adopted them.
Parents and Siblings: If you pass away with no partner or children, your estate goes to your parents. If your parents are no longer living, it will then be divided among your siblings.

The legal definition of who counts as your next of kin can be very different from the emotional reality of your family. To get a clearer picture of these legal definitions, you can learn more about what 'next of kin' legally means in our detailed guide. This rigid structure is precisely why having a will is so important—it lets you define your family on your own terms. Our article on making a will can guide you through that process.

Intestacy in Real Life: Practical Scenarios

Legal formulas and inheritance charts can feel a bit cold and impersonal. To really get a sense of what happens if you die intestate, it helps to see how these strict rules affect real families in everyday situations. Let's walk through a couple of practical stories that show the direct—and often surprising—impact of not having a will.

These stories are designed to bring the abstract concepts of intestacy into sharp focus. They reveal how the government's one-size-fits-all approach can create conflict and heartache at a time when families need peace and clarity the most.

The Blended Family: David’s Story

Meet David. He’s divorced from his first wife, and they have two children together, now 19 and 22. For the last five years, he’s been in a committed de facto relationship with Sarah. They share a home and their finances, but they just never got around to updating their legal documents.

Tragically, David passes away in an accident without a will. His estate is valued at $1,000,000, made up of the home he shares with Sarah (owned solely in his name), his superannuation, and some savings.

Because David has a partner and children from a previous relationship, the complex intestacy rules kick in immediately. Here’s how his estate would be divided:

Sarah's Entitlements First: As the surviving de facto partner, Sarah is entitled to David's personal effects (like the car and furniture) plus a large lump sum known as the statutory legacy. As of late 2025, this amount is $591,825.78.
What's Left Over: After that legacy is paid, $408,174.22 remains in the estate.
Dividing the Rest: Sarah receives half of this remainder, which comes to $204,087.11.
The Children's Share: David's two children from his first marriage split the other half, receiving $102,043.55 each.

All up, Sarah receives $795,912.89 from the estate. While this gives her significant financial security, it forces the sale of their family home to pay out the children's share. This outcome creates immense friction. Sarah feels pushed out of the home they built together, and the children feel their inheritance is far less than what their father would have wanted for them.

The Single Professional: Susan’s Story

Now, let's consider Susan. She’s 45, single, with no children. She’s a successful professional with a net worth of around $800,000, including an apartment and some investments. Her parents are both still alive, and she has two siblings—one she’s very close to, and one she’s been estranged from for years.

Susan always intended to make a will. Her plan was to leave most of her assets to her close sibling and a portion to a charity she was passionate about. Unfortunately, she never got around to it. When she dies unexpectedly, the NSW intestacy rules take over.

The distribution is simple, but it’s the complete opposite of her wishes:

Parents Inherit Everything: Because Susan has no spouse or children, her entire $800,000 estate is divided equally between her living parents.
Siblings and Charity Receive Nothing: Her siblings—both the close one and the estranged one—receive nothing at all. The charity she cared so much about is also left out completely.

This story highlights a critical flaw in the intestacy formula: it can’t account for the nuances of our relationships. Susan's parents, who are already financially secure, inherit everything, while the people and causes she truly wanted to support are completely ignored.

Intestacy law isn't concerned with your relationships, your promises, or your intentions. It is a rigid, unemotional formula that applies the same rules to every family, regardless of their unique circumstances.

Planning for Peace of Mind

These examples show how quickly a lack of planning can unravel a family’s security. The stress of dividing assets according to a cold legal formula only adds to the pain of grief. A will is your opportunity to prevent this, ensuring your legacy is one of care, not conflict.

A thoughtful estate plan is about reducing the burdens on your family in every way you can. This also includes pre-planning final arrangements. By exploring options like our No Service No Attendance, Affordable Cremation, Complete Cremation Service, or Traditional Funeral Service on our Services page, you can lock in your wishes and costs. It removes another layer of difficult decision-making for your loved ones during a trying time. This proactive step, alongside a valid will, provides true peace of mind.

The True Cost of Dying Without a Will

The impact of dying without a will goes far beyond a simple legal formula of who gets what. It leaves behind a heavy, often hidden, financial and emotional toll that can fracture relationships and make grieving feel almost impossible. The real cost isn’t just measured in dollars; it’s measured in stress, uncertainty, and lost family harmony.

When there’s no will, the estate is plunged into a complex court process. This journey is rarely quick or cheap. Before your loved ones see a single dollar, significant expenses can start to chip away at the value of everything you worked for.

The Financial Drain on Your Estate

The first major expense is applying for Letters of Administration, a formal court order that appoints someone to manage the estate. This process is far more complicated and costly than the straightforward probate process for an estate with a valid will. Legal bills can pile up quickly as your family’s administrator tries to navigate the court system.

Forced property sales are another common financial pitfall. For example, if an estate worth $900,000 consists mainly of a family home, and it must be split between a partner and children from a previous relationship, the home will likely need to be sold to pay out the legal entitlements. These sales often happen under pressure, meaning they might not get the best market price, which further reduces what your heirs receive.

In effect, dying without a will means letting the court system and a rigid legal formula manage your life's work. This almost always results in higher costs and less control for the people you leave behind.

These expenses really add up. In New South Wales, where about 30% of adults die without a valid will, the financial fallout can be devastating. A staggering 40% of these cases end up in legal disputes among potential heirs. These conflicts are incredibly expensive, with legal fees often ranging from $50,000 to over $500,000—all paid from the estate. The entire process to settle these estates can drag on for one and a half to three years, as detailed in recent legal analyses. You can learn more about these intestate succession challenges and see just how damaging they can be.

The Emotional Cost for Your Family

Beyond the numbers, the emotional strain is immense. Imagine your grieving loved ones, already trying to cope with their loss, now forced to deal with a confusing and impersonal legal system. They’re left in a state of prolonged uncertainty, sometimes waiting years for the estate to be settled.

This legal limbo can create deep rifts. When a rigid formula dictates who gets what, it can feel unfair and spark bitter disputes. A stepchild you raised as your own might get nothing, while a distant relative you haven't spoken to in decades could inherit a significant share. These legally mandated outcomes can cause lasting resentment and damage family bonds forever.

The administrator, usually a close family member, is saddled with immense responsibility and personal liability. They must make difficult decisions while navigating legal complexities, all while grieving themselves. It's a heavy burden to place on someone you love. For more on the duties involved, you can read our detailed guide on navigating finances after loss and settling deceased estates.

Ultimately, the cost of not having a will is measured in fractured relationships and added grief. To help ease this burden, consider how pre-planning your final arrangements can provide clarity. Our four main cremation packages on the "Services" tab (No Service No Attendance, Affordable Cremation, Complete Cremation Service, and Traditional Funeral Service) allow you to make key decisions now, removing one more source of stress for your family later on.

Your Family's Guide to Navigating the Process

When a loved one dies without a will, the path forward can feel foggy and overwhelming. It’s a time already heavy with grief, and the added weight of legal responsibilities is the last thing anyone needs. This guide is designed to give you a clear, practical roadmap to help you manage the essential steps.

The very first thing to do is secure your loved one's assets. This means making sure their property is safe, tracking down important documents like bank statements and title deeds, and letting financial institutions know about the death. This freezes their accounts and prevents anyone from accessing them without permission.

Think of this initial stage as carefully gathering all the pieces of a puzzle. You need to have everything in one place before you can begin to see the full picture.

The Role of the Estate Administrator

Because there's no will naming an executor, someone has to step up and apply to the Supreme Court of NSW to manage the estate. This person is officially appointed as the administrator, and their legal authority comes from a court document called Letters of Administration.

Usually, the person who applies is the closest next of kin, as set out by the intestacy rules. So, if the person who passed away had a spouse, the spouse would typically be the one to apply. If there was no spouse, an adult child would be next in line.

The administrator's role isn't just a title; it's a serious legal duty. They become personally responsible for handling everything correctly—from paying off debts to distributing what's left according to the law's strict formula.

A Step-by-Step Checklist for Action

Once appointed, the administrator needs to follow a structured process. Here’s a simple checklist of the core tasks involved in settling an intestate estate:

Create a Full Inventory: You’ll need to identify and list everything your loved one owned (property, bank accounts, shares, cars) and owed (mortgages, credit card debt, personal loans). This gives you a clear snapshot of the estate's total value.
Pay All Outstanding Debts: Before any family members receive an inheritance, all of the estate's debts must be paid off using the estate's funds. This includes taxes, loans, and any final bills.
File a Final Tax Return: An income tax return needs to be filed for the person who died, covering the period from the start of the financial year up to their date of death.
Distribute the Remaining Assets: After all debts are paid and taxes are sorted, the administrator must divide what's left among the eligible relatives, strictly following the NSW intestacy rules.

This whole process is formal and requires meticulous record-keeping. When someone dies without a will, their estate almost always has to go through this court-supervised journey. It's really helpful for families to spend some time understanding probate and how it works to see the full scope of what's involved.

For a more detailed breakdown of these duties, you can refer to our comprehensive guide on how to administer a deceased estate. Taking these steps methodically can bring a sense of order to a very difficult situation.

How to Avoid Intestacy and Protect Your Family

After seeing the confusion, costs, and conflict that intestacy can create, it becomes pretty clear that leaving your legacy up to a government formula isn't a risk worth taking.

Thankfully, the solution is both powerful and straightforward: creating a legally valid will. This single document puts the control right back in your hands, making sure your voice is heard long after you’re gone.

The Power of a Valid Will

Putting a will in place is the most direct way to shield your family from the cold, impersonal rules of intestacy. It offers them clarity and direction at a time when they need it most.

When you prepare a will, you gain a few crucial advantages:

You Choose Your Beneficiaries: You get to decide exactly who inherits your assets. This could be your partner, children, close friends, or even a charity you care about, ensuring no one important is accidentally overlooked.
You Appoint a Trusted Executor: Instead of a court-appointed administrator, you can name an executor—someone you trust completely—to manage your estate and follow your wishes with respect and care.
You Provide for Dependents: If you have young children, you can nominate a guardian for them. This guarantees they will be looked after by someone you know and trust to raise them with your values in mind.
You Can Make Specific Gifts: A will lets you leave specific items, like family heirlooms or sentimental keepsakes, to particular people, which can help prevent misunderstandings or family disputes down the track.

A will is so much more than a legal paper; it's a final act of care. It gives your family a clear roadmap, taking away the stress of legal battles and allowing them the space to grieve.

Integrating Your Final Wishes for Total Peace of Mind

A complete plan brings comfort not just for your estate, but for your final arrangements as well. Pre-planning your funeral or cremation is another way to lift a heavy burden of decision-making from your family’s shoulders.

You can explore our four main cremation packages on the "Services" tab—the No Service No Attendance, Affordable Cremation, Complete Cremation Service, and Traditional Funeral Service—to see how these arrangements can become part of your overall plan. Taking this step, along with creating your will, offers true peace of mind. For a deeper look into the will-making process itself, our comprehensive guide to making a will offers some really valuable insights.

Common Questions About Dying Intestate

When you’re grappling with the loss of a loved one who didn’t have a will, it’s natural to have a lot of specific questions. The legal side of things can feel confusing, but here are some clear, straightforward answers to the issues families most often face.

What Happens to My Superannuation If I Die Intestate?

Superannuation is a unique one because it doesn’t usually get lumped in with the rest of your estate. This means it doesn't automatically follow the standard intestacy rules.

Instead, who gets your super is decided by a binding death benefit nomination (BDBN). If you’ve filled one out with your super fund, the money goes straight to the person you named. Simple. But if you haven't, the fund's trustee gets to decide, and they’ll usually look for dependents like a spouse or children. It’s a good reminder that your super needs attention, just like your will does.

How Is a Jointly Owned House Handled?

This one really depends on how the house is owned. In NSW, there are two ways to own property together, and the difference is huge when someone passes away.

Joint Tenants: If you own the property as "joint tenants," something called the ‘right of survivorship’ kicks in. This means the surviving owner automatically inherits the whole property. It happens outside of the will and the intestacy laws.
Tenants in Common: If you’re "tenants in common," your share is treated as part of your estate. That share will then be divided up according to the strict, impersonal legal formula we've been talking about.

It’s so important to know which type of ownership you have. "Joint tenancy" gives the other owner a clear path, while "tenants in common" means your share gets caught up in the state's rules.

Can the Intestacy Rules Be Challenged in Court?

Yes, they can. Someone who is considered an "eligible person"—like a spouse, a child, or a person who was financially dependent on you—can make a family provision claim if they feel the intestacy rules have left them without adequate support.

The court will then look at their relationship to you, their financial needs, and other details to decide if the distribution should be changed. For example, a stepchild who was financially dependent on the deceased but excluded by intestacy rules could make a claim for provision from the estate. The reality, though, is that this can lead to draining legal battles, high costs, and long delays. It’s another reason why a thoughtfully written will is the kindest thing you can do for your loved ones.

As we've seen, dying without a will leaves behind a trail of legal and emotional hurdles. A will is your chance to prevent all of that. To ease the burden even more, planning your final arrangements ahead of time can bring real peace of mind. Our four main cremation packages on the "Services" tab (No Service No Attendance, Affordable Cremation, Complete Cremation Service, and Traditional Funeral Service) let you make those key decisions now, so your family doesn’t have to.

At Funera, we are here to guide you through every step with compassion and care. Visit us at https://www.funera.sydney to learn more.

What Happens If You Die Intestate in NSW?