No Will in Australia: What Happens When Someone Dies Intestate

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When someone dies without a valid will in Australia, they are said to have died “intestate.” The estate is not simply handed to the government — it passes to family members according to a legally prescribed order set out in each state’s legislation. This guide explains what that means in practice and what needs to happen next.

What “No Will” Actually Means

Dying intestate does not mean the estate is lost. It means the deceased lost the ability to decide who gets what. The state’s intestacy laws decide instead — and those rules do not take into account personal wishes, relationship quality, financial need, or any promises the deceased may have made.

There are also situations where a will exists but is invalid — because it was not properly witnessed, was made under duress, or the person lacked testamentary capacity. These also result in partial or full intestacy.

Who Administers an Intestate Estate

Without a will, there is no executor. Instead, an eligible person applies to the Supreme Court for Letters of Administration — the intestate equivalent of a Grant of Probate. This gives legal authority to administer the estate.

Who can apply for Letters of Administration: the spouse or de facto partner (first priority); then adult children; then parents; then siblings. The court grants administration to the person entitled under the intestacy rules — typically whoever stands to inherit the most.

How Assets Are Distributed Without a Will

Intestacy rules vary slightly between states but follow a broadly similar pattern across Australia. The key relationships and rules:

Spouse or De Facto Partner Only (No Children)

The surviving spouse or de facto partner receives the entire estate in most states. A de facto relationship must typically have existed for at least two years or have produced a child to qualify.

Spouse and Children of That Relationship

The surviving spouse receives: all personal effects (household contents, vehicles, jewellery, etc.) plus a preferential legacy (a fixed dollar amount set by each state — currently ranging from approximately $350,000 to $546,000 depending on the state) plus one half of any remaining balance. The children share the other half equally.

Spouse and Children from a Prior Relationship

This is the most complex scenario. The surviving spouse and children from a previous relationship each have competing claims. The rules vary significantly by state and can produce unexpected results. Legal advice is essential in this scenario.

Children Only (No Surviving Spouse)

All children share equally. If a child has predeceased the parent, their share passes to their own children (the deceased’s grandchildren).

No Spouse, No Children

The estate passes to parents equally. If parents have predeceased: to siblings equally. If no siblings: to grandparents. If no grandparents: to aunts and uncles. If none of the above survive: the estate passes to the state government as bona vacantia.

What Is Not Affected by Intestacy

Not all assets pass under the intestacy rules. The following pass outside the estate regardless of whether there is a will: jointly owned property (passes to the surviving owner by survivorship); superannuation (controlled by the fund trustee, not the intestacy rules); life insurance with a nominated beneficiary.

The Process from Here

The process for administering an intestate estate is similar to a testate (with will) estate, with one key difference: you apply for Letters of Administration instead of probate.

Steps: identify the eligible administrator (closest surviving relative as above); apply to the Supreme Court for Letters of Administration (advertising requirements and waiting periods apply, same as probate); compile full inventory of assets and liabilities; collect assets; pay debts in the legally required order; distribute to beneficiaries according to the intestacy rules of the relevant state.

Family Provision Claims

Even without a will, certain people who were dependent on the deceased or in a close relationship can apply to the court for a greater share than the intestacy rules would give them. This is called a family provision claim (also known as a testator’s family maintenance claim in some states). If you are the administrator and you receive notice of such a claim, seek legal advice immediately and do not distribute the estate.

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The Executor’s Guide provides general information about estate administration in Australia. It is not legal advice. Intestate estates — particularly where there is a spouse and children from different relationships — require legal advice specific to your state.

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Related guides

• What to Do When Someone Dies in Australia
• What Is an Executor?
• Executor Duties in Australia: The Complete Legal Guide
• Do I Need Probate? A Plain-English Guide