No Will - Intestacy

What "Dying Intestate" Means

When someone dies without a valid Will — or with a Will that doesn't cover all of their assets — they're said to have died intestate. In New South Wales, what happens next is set out in Chapter 4 of the Succession Act 2006 (NSW). The Court applies a fixed order of next-of-kin, regardless of what the deceased may have wanted, said or written informally.

Intestacy is more common than most people think. Around half of all Australian adults die without a current Will, and the practical consequences for the family can be significant — even where everyone "knows" what the deceased would have wanted.

Who Inherits Under NSW Intestacy Rules

The Succession Act sets a strict hierarchy. The estate passes to the first category in this list that has at least one living member:

*The statutory legacy is indexed each year by reference to CPI under s106 of the Succession Act. Please check the current figure with us before relying on it — recent values have been approximately $590,000 plus interest.

What Counts as a "Spouse"?

For intestacy purposes, a spouse is:

• A person who was married to the deceased at the time of death (separation alone doesn't end the marriage — only divorce does)
• A de facto partner who had lived with the deceased in a continuous de facto relationship for at least 2 years immediately before the death, OR with whom the deceased had a child, OR who was in a registered relationship under the Relationships Register Act 2010 (NSW)

De facto status often becomes the real fight in intestacy matters. Proving the relationship — particularly its duration and exclusivity — takes affidavit evidence from people who knew the couple. We help families assemble the proof and present it to the Court.

Applying for Letters of Administration

When there's no Will, no one has automatic authority to deal with the deceased's assets. Someone has to apply to the Supreme Court of NSW for a Grant of Letters of Administration — the equivalent of probate but for intestate estates. The Court grants this to the person highest in the priority list who is willing and able to act.

Priority for appointment as administrator

1. Surviving spouse or de facto partner
2. Children of the deceased (jointly or one with consent of the others)
3. Grandchildren or further descendants
4. Parents
5. Siblings
6. More remote relatives, in the same order as the inheritance hierarchy
7. The NSW Trustee & Guardian as administrator of last resort

Evidence You'll Need to Apply

One of the practical reasons intestacy is more expensive than dying with a Will: the evidence burden falls on the family. To prove entitlement to the estate, the applicant typically needs:

• Original birth, marriage and death certificates for the deceased and key family members (with certified translations if from overseas)
• Affidavits from people who knew the deceased confirming their living arrangements, marital status, and whether they had a de facto partner
• Searches for a possible Will — solicitors, banks, NSW Trustee & Guardian, the deceased's home — all documented in affidavit form
• A full inventory of assets and liabilities at the date of death
• Evidence of relationships — particularly for de facto partners or where children come from multiple relationships

We coordinate the document gathering, prepare the affidavits and lodge the application on your behalf.

Common Edge Cases

Intestacy looks simple on paper but real families almost never fit the simple cases. Some scenarios we deal with regularly:

• Separated but not divorced. A legal spouse still inherits under intestacy even if separated, until the divorce is final.
• Multiple spouses. A long-married but separated spouse plus a new de facto partner — both qualify. The Court splits the spousal share.
• Step-children. Don't inherit under intestacy and must rely on a Family Provision Claim if eligible.
• Overseas family. Documents from outside Australia require certified translations and authentication; this can take months.
• Missing or unknown heirs. Where there are no obvious next-of-kin, we engage genealogical specialists to trace eligible relatives before the estate passes to the State.
• Same-sex partners. Treated as spouses under the same de facto rules — but proof of the relationship is still required.

Common Questions About Intestacy in NSW

Who inherits if there's no Will in NSW?

The Succession Act 2006 (NSW) sets a fixed order: spouse first (with special rules where there are children from previous relationships), then children, then parents, then siblings, then more remote relatives. If there are no eligible relatives, the estate passes to the State of NSW. The exact share depends on which categories of relatives survive.

Does my de facto partner inherit if I die without a Will?

Yes, provided the relationship qualifies. A de facto partner inherits as a spouse under intestacy if they lived with the deceased for at least 2 continuous years immediately before death, OR they had a child together, OR the relationship was registered under the Relationships Register Act 2010 (NSW). Proof of the relationship is required — usually through affidavits.

Do step-children inherit under intestacy in NSW?

No. Step-children are not entitled to inherit under the intestacy rules unless they were legally adopted by the deceased. Step-children who were dependants of the deceased may still bring a Family Provision Claim if eligible.

What is Letters of Administration?

Letters of Administration is the formal grant from the Supreme Court of NSW that authorises someone to administer an intestate estate (or an estate where no executor is available). It's the equivalent of probate for an estate without a Will and is granted to the person highest in the statutory priority list who is willing to act.

What is the statutory legacy?

The statutory legacy is the fixed amount a surviving spouse receives off the top of an intestate estate before any residue is divided with children from previous relationships. It's indexed annually by reference to CPI under s106 of the Succession Act 2006 (NSW). Please check the current figure with us before relying on it.

What happens if someone has no living relatives?

If the deceased had no eligible relatives at all, the estate passes to the State of NSW as bona vacantia. The NSW Crown Solicitor administers these estates. Before that happens, the Court typically requires evidence that thorough searches for relatives have been made.

How long does it take to administer an intestate estate?

Most intestate estates take 9 to 15 months to administer — longer than testate estates because of the additional evidence required to prove entitlement. Complex cases involving de facto status disputes, overseas family or missing heirs can take significantly longer.