Law Plus Around half of Australian adults don't have a valid will. When someone dies without one, their estate doesn't simply go to whoever the family thinks is most deserving — it's distributed according to a fixed legal formula. This guide explains what that means in practice, and why it so often leads to delay, expense and family conflict.
What "intestacy" means
A person who dies without a valid will is said to have died "intestate". Because there is no will naming an executor, a family member must apply to the Supreme Court for "letters of administration" — a court grant that appoints an administrator to collect the assets, pay the debts and distribute what remains. The administrator is usually the person entitled to the largest share of the estate, most often the spouse.
Intestacy can also be partial: if someone leaves a will that doesn't deal with all of their assets — for example, a very old will that predates a property purchase — the leftover assets are distributed under the intestacy rules even though a will exists.
Each state and territory has its own rules
There is no single Australian intestacy law. Each state and territory has its own legislation setting out who inherits and in what proportions. The broad pattern is similar across the country, but the details — particularly how an estate is split between a spouse and children, and how de facto partners are treated — differ from one jurisdiction to another. The rules that apply are generally those of the state or territory where the person was domiciled, which can get complicated for people who owned property in more than one state.
Who generally inherits
While the details vary, the general order of entitlement looks like this:
- Spouse or de facto partner first. If the deceased leaves a spouse and no children, the spouse typically inherits the whole estate. Where there are children of the relationship, the spouse usually receives the bulk of the estate — often a set statutory amount plus a share of the remainder — with the children sharing the balance. Where the children are from another relationship, the split between spouse and children is often closer to half each.
- Then children. If there is no surviving spouse, the children inherit the estate in equal shares. If a child has already died, their own children (the deceased's grandchildren) usually take their parent's share.
- Then wider family. If there is no spouse and no children, the estate passes in turn to parents, then siblings, then grandparents, then aunts and uncles, and then cousins — following a set order of next of kin.
- Finally, the government. If no eligible relative can be found at all, the estate ultimately passes to the state.
Notably absent from this list: stepchildren (unless legally adopted), close friends, carers, favourite charities and unmarried partners who don't meet the legal definition of a de facto relationship. No matter how close the relationship, the intestacy formula gives them nothing.
Why intestacy causes delays, disputes and extra cost
Without a will, everything takes longer. Someone must step forward and apply for letters of administration, which means locating and proving the family tree — birth, death and marriage certificates for relatives, sometimes going back generations. Where relatives are estranged or overseas, this can take months. The estate's assets sit frozen in the meantime: bank accounts can't be accessed, property can't be sold, and bills keep arriving.
Intestacy also breeds disputes. Blended families are the classic flashpoint — a second spouse and children from a first marriage may have very different ideas about what's fair, and the statutory formula rarely satisfies everyone. Disappointed family members can bring family provision claims against the estate, adding legal costs that are ultimately paid out of the estate itself. All of this lands on a family that is already grieving.
The solution is simple: make a will
A properly drafted will lets you decide who inherits, choose your own executor, appoint guardians for young children and make provision for the people and causes the intestacy rules ignore. It also makes the administration of your estate faster and cheaper for the people you leave behind. Our wills and estates lawyers prepare wills on a fixed-fee basis, and can also help with powers of attorney and guardianship documents at the same time.