Most people understand, at least in a general sense, that making a Will is important. Far fewer people understand what actually happens if there is no Will at all. In New South Wales, dying without a Will – legally described as dying intestate – triggers a very different process to the one most people assume applies after death.
When there is a death without a Will, the law steps in. Decisions about who controls the estate and who inherits are no longer guided by personal wishes, informal promises, or what feels fair to the family. Instead, they are determined by a set of statutory rules known as the intestacy laws.
For some families, those rules produce an outcome that broadly aligns with expectations. For others, they come as a shock.
This article explains what happens when someone dies without a Will in NSW, how the probate intestacy rules operate in practice, and why intestacy often leads to delay, expense and dispute – even in families that are otherwise close.
What does it mean to die intestate?
A person dies intestate when they die without a valid Will. This can happen in a few different ways:
no Will was ever made
a Will was made but later revoked and not replaced
a Will exists but is invalid (for example, it was not properly signed or witnessed)
a Will cannot be found and cannot be proven
In each of these cases, the law treats the estate as intestate. The result is the same whether the person intended to make a Will and never got around to it, or whether they deliberately chose not to.
Once intestacy applies, personal intentions become legally irrelevant.
Why dying without a Will is different
When someone dies with a valid Will, the executor named in that Will applies for probate and administers the estate in accordance with the deceased’s instructions.
When there is a death without a Will, there is no executor. No one has automatic authority to step in. Instead, an eligible person must apply to the Supreme Court of NSW for letters of administration. That person becomes the administrator of the estate.
Just as importantly, the estate must be distributed according to the intestacy laws, not according to what the deceased may have wanted.
This is where many assumptions fall away.
Who controls the estate if there is no Will?
Under the probate intestacy rules, priority is given to certain people to apply for letters of administration. Broadly speaking, the order is:
a surviving spouse or de facto partner
children of the deceased
other close relatives, in descending order
Where there is more than one person with equal priority – for example, multiple adult children – the Court may require a joint application or formal renunciations from those who do not wish to act.
Disputes about who should administer the estate are common. In some cases, the Court appoints an independent administrator because family members cannot agree or are considered unsuitable.
This alone often delays estate administration by months.
How the intestacy rules determine who inherits
The intestacy laws set out a rigid formula for distribution. They do not take into account personal relationships, informal understandings, or moral expectations.
While the precise outcome depends on family structure, some common scenarios illustrate how this works in practice.
If there is a spouse but no children
If the deceased dies intestate and is survived by a spouse or de facto partner, and there are no children, the spouse generally receives the entire estate.
This is one of the few situations where intestacy produces a relatively simple result.
If there is a spouse and children
This is where complexity begins.
If the deceased is survived by a spouse and children, the outcome depends on whether the children are also the children of the surviving spouse.
If all children are from the current relationship, the spouse usually receives the entire estate.
If there are children from a previous relationship, the estate is divided between the spouse and those children in accordance with a statutory formula.
That formula involves:
a fixed statutory legacy to the spouse,
the spouse’s personal effects, and
a split of the remaining balance.
For blended families, this can produce outcomes that satisfy no one.
If there is no spouse
If there is no surviving spouse, the estate is distributed to children equally.
If there are no children, the estate passes to other relatives in a prescribed order: parents, siblings, nieces and nephews, and so on.
The law does not recognise close friends, long-term companions who do not meet the legal definition of a de facto partner, or stepchildren (unless they were legally adopted).
What about stepchildren?
Stepchildren are one of the most commonly overlooked groups in intestacy.
Unless a stepchild was legally adopted by the deceased, they do not inherit under the intestacy laws. Even where a stepchild was raised by the deceased or treated as their own, that relationship carries no automatic legal weight.
This frequently comes as a surprise to families and is a common trigger for disputes and family provision claims.
Why intestacy often leads to disputes
Intestacy removes choice and replaces it with a formula. That alone creates tension, particularly where:
families are blended,
relationships are strained,
assets were accumulated before a later relationship, or
expectations were formed over many years.
It is also common for beneficiaries to feel that the intestacy outcome is “unfair”, even though it is legally correct. That sense of unfairness often leads to family provision claims, which further delay administration and increase costs.
Intestacy does not avoid claims – it often invites them
A common misconception is that family provision claims arise only when there is a Will. In reality, intestate estates are frequently the subject of claims.
Eligible persons have 12 months from the date of death to bring a claim seeking adequate provision. Where the intestacy rules produce a rigid or unexpected outcome, claims are more likely, not less.
Administrators who distribute the estate too early may face personal liability if a claim is later brought.
The practical impact on estate administration
From a practical perspective, dying without a Will often means:
longer delays before administration can begin
increased legal costs
greater scrutiny by the Court
more paperwork and evidence
a higher risk of dispute
Even relatively modest estates can become complicated simply because there is no clear authority and no clear direction.
What happens to jointly owned assets?
Not all assets are affected by intestacy in the same way.
Assets held as joint tenants (such as a jointly owned home or bank account) usually pass automatically to the surviving joint owner, regardless of intestacy.
Assets held as tenants in common form part of the estate and are distributed under the intestacy laws.
This distinction is often misunderstood and can significantly affect outcomes.
Superannuation and intestacy
Superannuation does not automatically form part of an intestate estate. Whether it is paid to the estate or directly to a beneficiary depends on the rules of the superannuation fund and any death benefit nomination in place.
As a result, superannuation can bypass the intestacy rules entirely, or become part of the estate and subject to them. This adds another layer of complexity and is a common source of confusion for administrators and beneficiaries.
Who should consider the risks of intestacy most carefully?
While everyone should have a Will, intestacy is particularly problematic for people who:
have blended families
have minor children
own property or businesses
have significant superannuation
have stepchildren or dependants outside the nuclear family
have strong views about how assets should be controlled or used
For these groups, dying intestate almost guarantees outcomes that differ from intention.
Why informal instructions don’t help
Telling family members what you want, writing notes, or assuming “everyone knows” does not prevent intestacy.
Courts do not enforce informal wishes unless they are contained in a valid Will. In some cases, informal documents can be admitted as a Will, but that requires court proceedings and is far from guaranteed.
Relying on informal arrangements usually shifts the problem onto those left behind.
The cost of not making a Will
One of the ironies of intestacy is that people often avoid making a Will to save time or cost, yet dying without a Will almost always results in greater expense for the estate.
Additional legal work, court applications, delays and disputes all reduce the value ultimately received by beneficiaries.
Key takeaway
Dying without a Will does not mean your estate is dealt with simply or fairly. It means your affairs are governed by rigid intestacy laws that cannot account for personal relationships, expectations or nuance.
In NSW, intestacy often leads to delay, increased cost and dispute – particularly for blended families, business owners and anyone with significant assets.
Making a valid Will is not about complexity. It is about retaining control and removing uncertainty at a time when clarity matters most.
Related Guides — Wills & Estates Law in NSW
Dying without a valid will (intestacy) can have significant legal and financial consequences in New South Wales. The following guides explore key aspects of wills, estate administration, and planning to help you understand what happens when someone dies without a will and how to prepare effectively.
Speak to a specialist estate lawyer
If you would like to prepare a Will to avoid intestacy, or if you are administering an estate where a death without a Will has occurred, obtaining advice early can help clarify your position, manage risk and avoid unnecessary delay or conflict. To speak to an intestacy lawyer, give us a call or submit an enquiry now.
