Every Australian state and territory has intestacy legislation that dictates how an estate is divided when there is no valid will. The rules differ slightly between states but follow a similar structure based on family relationships.
Who inherits under intestacy
The distribution follows a hierarchy. In most states, the order is broadly:
- Spouse or domestic partner: typically receives the majority or all of the estate if there are no children
- Children: if there is a spouse and children, the estate is typically split between them (exact proportions vary by state)
- Parents: if there is no spouse or children
- Siblings: if there are no parents
- More distant relatives: if none of the above survive
- The state: if no relatives can be found
Importantly, de facto partners are recognised in most states, though the rules vary. Friends, carers, and unmarried partners of shorter relationships may receive nothing regardless of the relationship's depth or the deceased's intentions.
Intestacy rules can produce outcomes that do not reflect the deceased's wishes, particularly in blended families where stepchildren, current partners, and children from previous relationships may all have competing claims. This is one of the most compelling reasons to have a current, valid will.
What happens to the estate
Without a will, there is no executor. A family member must apply to the Supreme Court of their state for letters of administration. An authority to manage and distribute the estate. This process takes time and involves legal fees.
Until letters of administration are granted, the estate is effectively frozen. Banks cannot release funds, property cannot be transferred, and superannuation nominations may or may not direct benefits outside the estate.
How long does it take
The intestacy process is typically slower than probate. Letters of administration can take several months to obtain, and distributing a complex estate may take a year or more. During this time, ongoing costs, mortgage, rates, insurance, may continue to fall on the family.
Assets that pass outside the estate
Some assets are not affected by intestacy and pass directly to nominated beneficiaries regardless of whether there is a will:
- Superannuation: paid to nominated beneficiaries or at the fund's discretion
- Life insurance: paid to nominated beneficiaries
- Joint tenancy property: passes automatically to the surviving joint tenant
Why a will matters
A valid will lets you specify who receives what, appoint an executor you trust, make specific gifts, and in some states make provisions for guardianship of minor children. It makes an already difficult time significantly easier for the people you leave behind.
Planning your own? Our guide to how to make a will in Australia sets out the options, from a solicitor to your state's Public Trustee.
Record your wishes before they are needed.
Remember Well•'s Wishes Planner and Will Preparation Guide help you get the important decisions documented.
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