What Happens When Someone Dies Without a Will in Australia?

Who inherits when there is no will?

Intestacy rules identify beneficiaries through legally recognised relationships. Partners and children are central, while parents, siblings and more distant relatives may become relevant where closer categories are absent. The order, definitions and shares depend on the jurisdiction.

A surviving spouse does not receive the whole estate in every case. In NSW, for example, the current spouse generally receives the whole intestate estate if the deceased has no children from a previous relationship. Children from an earlier relationship can change that distribution. The NSW Government’s intestacy guide explains these categories and exceptions.

Queensland has its own distribution rules. Where there are both a surviving spouse and children, the spouse’s entitlement can include a statutory amount, household chattels and a share of the balance. Check the Queensland Succession Act, Schedule 2 rather than applying the NSW example elsewhere.

The relationship needs to be established

De facto partners may qualify, but legal definitions and evidence matter. Separation, multiple relationships and children from different relationships can make an apparently straightforward family tree more complicated. Being a close friend, carer or stepchild does not by itself establish an automatic entitlement under every intestacy scheme.

If no eligible relatives can be established, an estate may ultimately pass to the government under the applicable rules. That is different from saying the government takes every estate without a will.

There can also be special provisions. For example, NSW law allows applications concerning the distribution of an Aboriginal person’s intestate estate according to traditional laws and customs. See the NSW Trustee and Guardian explanation.

Which state’s law applies?

The place of death alone does not settle the question. The deceased’s legal domicile and the location and type of property can matter. Broadly, succession to movable assets follows the law of domicile at death, while land is governed by the law where it is situated. The NSW Chief Justice’s discussion of intestate succession explains this distinction. Interstate property or overseas connections warrant individual advice.

Who has authority to manage the estate?

Without a will appointing an executor, the estate may require an administrator. A grant of letters of administration provides formal authority to deal with estate assets. An eligible close relative often applies; volunteering first is not the same as having priority.

Probate usually concerns proving a valid will and confirming its executor’s authority. Letters of administration are commonly used where there is no valid will. A related grant, called administration with the will annexed, applies in some situations where a valid will exists but there is no executor able to act.

Not every estate requires a court grant. The assets and the requirements of the organisations holding them matter. Ask each bank or institution what it requires before assuming an application is essential. The Supreme Court of Victoria’s guide to grants explains this distinction.

Where an application is necessary, check the local court’s requirements for eligible applicants, supporting evidence and consents. Legal Aid NSW outlines the NSW application process; other jurisdictions have their own procedures.

Which assets actually form part of the estate?

Before calculating inheritance shares, work out what the deceased owned and how they owned it. A house, a bank balance and superannuation may follow different pathways.

Legal Aid NSW explains the property ownership distinction. For super, ASIC’s Moneysmart guide to death benefits explains how a nomination may direct payment to eligible beneficiaries or to the legal personal representative for the estate.

A practical example: a family might need to deal separately with a solely owned savings account, a jointly held home and a super death benefit. Applying one inheritance percentage to their combined value could give a misleading result.

What should the family do first?

You don’t need to work out everyone’s final entitlement immediately. Begin with information gathering and asset protection.

1. Make a proper search for a will. Check secure storage at home and contact the deceased’s solicitor, relevant banks or trustee organisation. Keep a record of enquiries. If a copy, unsigned draft or unusual document turns up, obtain advice about its significance. Legal Aid NSW lists places to search.
2. Secure the home and record belongings. Check access and insurance arrangements, photograph valuables in place and retain relevant correspondence. Avoid informal giveaways or a rushed house clearance while ownership and authority remain unresolved.
3. Build a document file. Gather the death certificate, identification, relationship records, account statements, property details, debts and super fund correspondence. The local application may require additional evidence of family relationships or searches.
4. Ask institutions about their deceased-estate process. Notify banks, insurers and super funds, and ask what they need to identify the authorised representative. Record the contact person and requirements rather than assuming every organisation uses the same threshold or forms.
5. Keep accounts before making distributions. Record estate income and expenses, retain receipts and keep estate money separate from personal funds. Confirm debts, tax and potential claims before transferring the balance to beneficiaries.

The Queensland Public Trustee’s estate guide describes the administrator’s core responsibilities: collecting assets, paying debts, finalising tax and distributing to lawful beneficiaries. For tax tasks, use the Australian Taxation Office’s deceased-estates guidance and obtain accounting help where needed.

How long does an intestate estate take?

There is no reliable national completion time. A court grant is one stage; locating assets, proving relationships, dealing with property, resolving tax and checking claims can take longer. Missing relatives or overseas records can add substantial delays.

A quoted court processing time should not be treated as the date beneficiaries will receive their money. Check the relevant registry’s current guidance. The Victorian Probate Office FAQs, for example, explain its application review process and publish current review information.

Fees also depend on the jurisdiction and the work required. Ask for an estimate covering court fees, legal assistance, searches, valuations and any property or tax work, with an explanation of what might increase the cost.

When should you get legal advice?

Seek an estates solicitor’s advice early if there is a disputed relationship, a blended family, minor beneficiaries, missing relatives, insufficient funds to meet liabilities, interstate property or overseas assets. Advice is also useful where relatives disagree about the applicant or someone has already removed or distributed property.

Intestacy does not necessarily prevent a family provision claim. Eligibility, deadlines and available orders depend on local law. In NSW, an eligible person’s application generally needs to be made within 12 months of death; do not assume that period applies elsewhere or starts when administration is granted. Legal Aid NSW explains family provision claims. If you may have a claim, seek advice promptly rather than waiting for distribution.