Dying Without a Will in NSW: Who Gets What (and Why It Might Not Be Who You Think)

What Does “Intestate” Actually Mean?

Let’s address the elephant in the room - no one plans to die without a will. But plenty of people do. And when that happens, the law doesn’t pause to reflect on your relationships, your intentions, or who you meant to include. It simply steps in and applies a fixed set of rules.

In New South Wales, dying without a will is known as dying “intestate,” and your estate is distributed according to the Succession Act 2006. Think of it less like a thoughtful plan and more like a rigid recipe—one that doesn’t allow for personal taste.

What If You Have a Spouse?

If you leave behind a spouse or de facto partner, they are first in line - but that doesn’t automatically mean they receive everything.

If all of your children are from that relationship, your spouse will generally inherit the whole estate. Straightforward.

However, if you have children from a previous relationship, things become more complex. Under section 113 of the Succession Act 2006, your spouse is entitled to your personal belongings, a statutory legacy (a set sum determined by law), and a portion of the remaining estate. The balance is then divided between your children.

It’s a structure that often surprises people - and can create unintended tension between partners and children, particularly in blended families.

What If You Don’t Have a Spouse?

If there is no spouse, your children step forward as beneficiaries. They inherit your estate in equal shares.

If one of your children has already passed away, their share doesn’t disappear - it typically passes down to their own children. In other words, your grandchildren may inherit in their place.

No Spouse or Children? The Family Tree Takes Over

If there’s no spouse and no children, the law starts climbing your family tree. Your estate may pass to your parents, then siblings, then nieces and nephews, and so on.

The further it goes, the more distant the connections can become. It’s entirely possible that someone you haven’t spoken to in years - or perhaps ever - could end up benefiting from your estate.

And if no eligible relatives can be found, your estate ultimately goes to the NSW Government. After a lifetime of building assets, that outcome is rarely what people would have chosen.

What Happens to Your Property?

For property owners, intestacy can have significant consequences. Whether your property forms part of your estate depends on how it is owned.

If you hold property as a joint tenant, your share will usually pass automatically to the surviving owner, outside of the estate altogether. But if the property is held as tenants in common, your share becomes part of your estate and is distributed under the intestacy rules.

This distinction alone can dramatically change who ultimately inherits the property.

The Hidden Downsides: Delays, Costs and Disputes

Dying intestate doesn’t just affect who gets what—it also impacts how your estate is administered.

Instead of a straightforward probate application, someone, usually a close relative, must apply for Letters of Administration. This can take additional time, delay access to funds, and increase legal costs.

It can also create fertile ground for disputes, particularly where family dynamics are complex or expectations don’t align.

Why It Matters More Than You Think

The reality is that intestacy doesn’t remove decisions - it simply hands them over to legislation. While the law aims to provide a fair framework, it cannot account for personal circumstances, nuanced relationships, or specific wishes.

Final Thoughts: Write Your Own Ending

Creating a will allows you to retain control. It gives you the ability to decide who benefits, how your assets are distributed, and who will manage your estate. It also provides clarity for your loved ones at a time when they are least equipped to deal with uncertainty.

Because if you don’t write your own ending, the law will write it for you - and it’s not known for getting the details right.

Ready to Take Control (or Need Help Sorting Things Out)?

If you don’t yet have a will, this is your sign to get one in place. A properly drafted will ensures your assets go where you intend -and saves your loved ones from navigating a rigid legal process at an already difficult time.

If someone close to you has passed away without a will, we can also assist with applying for Letters of Administration and guiding you through the estate process from start to finish.

Feel free to reach out to our team to discuss your situation and how we can assist.