What happens if you die without a Will in Australia: A clear guide to Intestacy
The Hidden Cost of Dying Without a Will
Many people assume that if they pass away without a will, their estate will simply “go to my spouse” or “be divided equally between my children.”
Unfortunately, it’s rarely that simple. While that may sound like what you want, in essence it’s not what most clients ask us to draft at Head and Heart Estate Planning. It might reflect the bare bones of your wishes, but it’s the extra care, structure, and thoughtful additions we build into those basic directions that make all the difference. Those refinements are what transform a simple set of instructions into an estate plan that truly reflects the love and care you have for your family and beneficiaries.
Dying without a valid will is known as intestacy, and the laws that decide who inherits can lead to outcomes that are far from what you intended.
In my experience, intestacy doesn’t just cause administrative headaches; it can create deep emotional conflict, long time delays, and real financial strain for the people left behind. Families are often shocked to discover that certain assets don’t form part of the estate at all, or that a loved one they expected to benefit has no automatic entitlement.
Understanding how intestacy works, and why it’s so important to avoid it by having a customised will prepared by a lawyer, is one of the most effective ways to protect your family and your wishes.
What Is Intestacy and When Does It Apply?
Intestacy occurs when a person dies without a valid will (complete intestacy), or when their will doesn’t effectively distribute all of their assets (partial intestacy). In those cases, the intestacy provisions of each state’s succession legislation determine who receives the estate.
This situation arises more often than many people realise. A will might be invalid because it wasn’t executed correctly, or because a later marriage, divorce, or relationship change automatically revoked or altered it.
Partial intestacy, where part of the estate is left undistributed, can also occur if a will doesn’t cover all assets or contingencies. For example, the will-maker may have gifted specific assets but not included a clause to deal with the residue of their estate. Or they may have appointed only one executor who is now unable to act, without naming a substitute. In both cases, the intestacy provisions will apply to determine who should be the administrator and how the remaining estate is distributed.
When intestacy applies, the will-maker doesn’t decide who gets what, the law does. Each state and territory has a strict order of priority that allocates shares of the estate to certain relatives, regardless of personal relationships or the deceased’s actual wishes or intentions.
For anyone wanting their estate distributed in a way that truly reflects their intentions, understanding these default rules is the first step in recognising their limitations.
How Intestacy Works in Different States
The rules for distributing an estate under intestacy are set out in each state’s succession legislation. While the broad principles are similar, the exact entitlements and processes differ between jurisdictions.
Below is a general comparison of how intestacy is handled in New South Wales, Victoria, and Queensland, three of the most common jurisdictions where our clients hold property or family connections.
(New South Wales – Succession Act 2006 (NSW))
(Victoria – Administration and Probate Act 1958 (VIC))
(Queensland – Succession Act 1981 (QLD))
Relationship status and entitlement summary:
Married or de facto, no children: entire estate to spouse.
Married or de facto, with children (all of the relationship): entire estate to spouse.
Married or de facto, with children from a previous relationship: spouse receives statutory legacy and share of the balance; remainder to children.
No partner, children only: divided equally between children.
No partner or children: to parents, then siblings, then extended family.
Statutory legacy amounts are indexed periodically by each state government. Figures are correct as at 2025 but should always be checked against the current legislation.
While these laws might appear logical at first glance, they don’t take into account the unique nuances of your personal or family circumstances. They can’t consider the needs of blended families, informal caregiving arrangements, or contributions to property or businesses. In practice, they often produce results that surprise or distress families, especially when assets are spread across multiple states with different laws.
Why Intestacy Rarely Reflects Your Intentions
Even when an intestate estate seems straightforward, the outcome rarely matches what most people would have chosen for themselves. In practice, the rules are rigid and can’t account for the personal considerations, family dynamics, or protective structures that form part of most well-drafted wills.
From my experience at Head and Heart Estate Planning, these are some of the most common issues that arise when someone dies without a valid will:
Executors aren’t chosen. Administrators are appointed according to legislation, based on a predetermined hierarchy rather than suitability. This rarely aligns with who the deceased would have trusted or chosen to manage their affairs efficiently.
No payment for executors. Administrators can apply for commission, but this is rarely done and is a cumbersome process compared to the clarity of a specific gift or payment provided under a will (which we think is a good idea, and will explain why in a different blog).
Limited powers for administrators. Administrators must rely on the powers given to them under legislation, which are far more restrictive than the bespoke executor powers usually included in a tailored will.
Inheritance paid outright at 18. Intestacy provides no flexibility around when beneficiaries receive their entitlement. Most parents and grandparents we work with are not comfortable with an 18-year-old receiving a substantial inheritance outright, yet intestacy leaves no alternative. Beneficiaries are entitled immediately upon turning 18, no matter how vulnerable they may be at that age to wasteful spending or financial abuse.
Non-estate assets are not included and are left unmanaged. Intestacy only deals with assets that form part of your estate. Non-estate assets, such as jointly held property or superannuation, may not be dealt with at all if there is no valid succession plan in place (such as a binding death benefit nomination). The deceased may have assumed that the property they own would fall into the intestacy provisions, and may have discussed or made promises to family or beneficiaries on this basis. But in reality, if the property is a non-estate asset (such as jointly owned property), it will never fall into their estate to be distributed under intestacy, and this can cause extreme disappointment for beneficiaries.
No asset protection for beneficiaries. Intestacy doesn’t allow for testamentary trusts, which are one of the most effective ways to protect inheritances from relationship breakdowns, bankruptcy, or poor financial management.
No opportunity for specific gifts. Sentimental items, family heirlooms, or meaningful personal gifts can’t be directed; everything is distributed strictly according to the statutory formula.
Each of these issues can add complexity, delay, and cost. More importantly, intestacy removes your ability to make thoughtful choices about timing, protection, and fairness that truly reflect your values and relationships.
The Administrative Burden and Legal Costs
When someone dies without a will, the process of managing their estate is not only more complex, but also more time-consuming and often more expensive for those left behind. Without a named executor, someone, usually the next of kin, must apply to the Supreme Court for Letters of Administration before they can access or deal with any of the deceased’s assets.
This process can take several months, even when uncontested. When contested, or when there is more than one administrator entitled to apply jointly and they don’t get along, it can be far worse. There are concepts such as surety guarantees that can be difficult for administrators to meet, and I have seen estates stuck in limbo for these reasons. During that time, assets may be frozen, property sales delayed, and everyday financial matters, such as paying a mortgage or covering funeral expenses, left unresolved. It’s an added administrative and emotional burden at an already difficult time.
There are also practical challenges. I have seen one house sit untouched for over a year, the fridge not even emptied out, while the battle behind the scenes plays out. These real-life delays have financial and emotional consequences for families who are already grieving.
Each of these issues can add professional costs and prolong finalisation. In contrast, a clear, lawyer-drafted will provides direction, reduces administrative uncertainty, and makes it far easier for your loved ones to act quickly and confidently.
In short, intestacy doesn’t just cost more in time and fees than what the original cost of a lawyer-drafted will would have been in the first place. It’s a short-term saving for the deceased that the estate and beneficiaries will later pay tenfold for.
Why Professional Advice Changes Everything
A well-drafted will does far more than divide up assets; it gives structure, protection, and clarity to one of the most important legal processes your family will ever experience.
When I work with clients on their estate plan, the focus isn’t just on who gets what (and advice about what even is), but on how and when they receive it. Professional advice allows for forward planning and thoughtful control, including legal strategies that balance the legal, practical, and emotional considerations that intestacy can never achieve.
A lawyer-drafted will also:
Considers what assets will even come into your estate to be dealt with by your will (before we even put words on the page)
Ensures your estate is administered efficiently and in accordance with your wishes
Provides asset protection strategies, such as testamentary trusts, to preserve wealth for future generations
Considers the different needs of beneficiaries, and what is fair (not just what is equal)
Anticipates and implements strategies to avoid potential disputes before they arise
Reduces the overall emotional and financial cost to your loved ones
For many families, the real value of estate planning isn’t measured in dollars saved but in the peace of mind that comes from knowing everything is taken care of. It’s the difference between leaving a plan and leaving a problem.
The Value of Planning Ahead
Estate planning and a customised, lawyer-drafted will is never about complexity for complexity’s sake or busy work and big bills for the lawyers. It’s about getting it right for you, and what that looks like differs from person to person. A will drafted by an expert lawyer is the difference between your loved ones navigating a clear path or struggling through uncertainty at one of the hardest times in their lives.
Taking the time to plan ahead ensures your estate is administered efficiently and with the same intention and love that guided your life. It’s a gift of clarity and protection to those who matter most to you. Perhaps they’ll never fully appreciate the gift you’ve given them, because its value lies in what doesn’t happen, the calm and clarity that replace confusion and conflict.
These outcomes are avoidable with professional planning. This is where good legal advice makes a real difference.
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