What Happens If Someone Dies Without a Will in Australia?

Detailed Explanation

Most people assume that without a will, "the family" simply decides what happens. In Australia, that's not how it works. Intestacy is a formula set by legislation, applied by the courts, with very little room for family agreement to override it. See the Wills, Probate & Estates hub for how this fits alongside the rest of estate administration.

What "intestate" actually means

Someone dies intestate when they leave no valid will, either because they never made one, or because the will they made turns out to be invalid (unsigned, incorrectly witnessed, or successfully challenged; see how to write a legally valid will in Australia for what makes a will hold up). "Partial intestacy" also happens when a will exists but fails to deal with everything the person owned. The will governs what it covers, and the intestacy formula fills the gap.

Each state and territory has its own intestacy legislation (generally called a Succession Act or Administration Act), so the exact shares below vary. This is general information, not a substitute for checking the current formula in the relevant state.

Who inherits, in what order

While the fine detail differs by state, the broad pattern nationwide is:

1. Spouse or de facto partner, and children: if there's a spouse and no children (or only children shared with that spouse), the spouse typically inherits the whole estate. If there are children from an earlier relationship, most states split the estate between the spouse (a statutory legacy plus a share) and the children.
2. Children, no spouse: the children inherit equally, with a deceased child's own children (grandchildren of the person who died) usually stepping into their parent's share.
3. No spouse or children: the estate typically passes to parents, then siblings, then grandparents, then aunts and uncles, in a fixed statutory order. Each level only inherits if no one exists at the level above.
4. No relatives at all: the estate passes to the state or territory government, after a genuine search for relatives has been exhausted.

None of this considers what the person actually said informally, who cared for them, or who they were estranged from. The formula applies regardless. A verbal promise, a draft will never signed, or a note found afterward carries no legal weight (though see the "Common Mistakes" section below on the rare exception).

Applying for letters of administration

Where a will names an executor who then applies for probate, intestacy has no executor to name, so the closest eligible relative (usually the spouse, or the person entitled to the largest share) applies to the Supreme Court of the relevant state for letters of administration. This grant does the same job probate does: it gives the administrator legal authority to collect the assets, pay debts, and distribute what remains. See what is probate and when is it required and what does an executor do for how the wider process (inventory, debts, distribution) actually plays out, since it's largely identical once the grant is issued. The same person, the one with the best claim to administration, also generally holds the immediate, practical right to decide on the funeral and burial itself, well before the formal grant comes through. See who has the legal right to decide where someone is buried for how that works.

Practically, the administrator needs the death certificate, a list of assets and their approximate value, and evidence of their own relationship to the person who died (a marriage certificate, birth certificate, or similar). More than one person can be equally entitled to apply. Where that happens, the applicants usually need to agree between themselves, or the court decides.

If more than one person could apply

Disagreement about who should administer the estate is one of the more common flashpoints in an intestate estate, for example, adult children who don't get on, or a spouse and stepchildren from an earlier relationship. Courts generally prefer the person with the largest entitlement under the formula, but sibling or family disputes over who applies (or how assets are valued) can meaningfully slow the process and, in genuinely contested cases, are worth raising with a solicitor early rather than letting positions harden.

Things to Consider

• Superannuation and jointly-owned assets sit outside intestacy. Super is usually paid by the fund's trustee to a nominated beneficiary or dependant under its own rules, and jointly-owned assets (the family home held as joint tenants, joint bank accounts) pass automatically to the survivor. Neither goes through the intestacy formula, whether or not a will exists.
• Funeral costs still come first. However the estate is eventually divided, funeral and reasonable estate-administration expenses are paid before any distribution. See who pays for a funeral if money is tight in the meantime.
• Blended and estranged families are the hardest cases. The formula doesn't ask who the person was close to. An estranged adult child can still inherit ahead of a long-term but unregistered partner in some states, which is precisely the outcome a will is written to prevent.
• Family provision claims can still apply. Even under intestacy, someone the law considers eligible (a spouse, child, or in some cases a dependant) but who receives too little (or nothing) under the formula can apply to the court for further provision from the estate, within a state-specific time limit after the grant. See how do you contest a will in Australia for how that process works.
• This is general information, not legal advice. For a genuinely contested estate, an estranged family, or a blended family with a de facto partner and children from an earlier relationship, get advice from a solicitor experienced in succession law before assuming how the formula applies.

Common Mistakes

• Assuming a verbal wish or a draft will still counts. Courts occasionally recognise an informal document as a will in narrow, specific circumstances, but this is the exception decided case by case, never the default. Don't rely on it.
• Assuming the spouse automatically gets everything. True in many cases, but not where there are children from an earlier relationship, a common and often unwelcome surprise for blended families.
• Delaying because "we all agree anyway." Family agreement doesn't replace the legal process. Assets still can't be transferred or sold until letters of administration are granted, so applying promptly matters even when there's no dispute.
• Overlooking a de facto partner's entitlement, or conversely assuming a short-term relationship automatically qualifies. Both directions cause real disputes; check the state's specific definition rather than assuming either way.
• Not searching thoroughly for a will before assuming intestacy applies. Check with solicitors the person used, the Public Trustee, their bank, and their papers. A will turning up after administration has started is a genuine complication.