What Happens If You Die Without a Will in NSW?

Dying without a valid will in New South Wales is known as dying intestate. Your estate does not automatically go to the government. Instead, Chapter 4 of the Succession Act 2006 (NSW) sets out strict rules that determine who inherits your assets and how they are distributed. These rules prioritise a surviving spouse (including a de facto partner) and children, then move down a fixed hierarchy of relatives. The outcome often differs from what many people expect or would have chosen themselves.

Letters of Administration

Without a will, there is no named executor. An eligible person (usually the spouse or next of kin) must apply to the Supreme Court of NSW for Letters of Administration. This grant gives the appointed administrator legal authority to collect assets, pay debts and funeral expenses, and distribute the estate according to the intestacy rules. Bank accounts and property generally remain frozen until the grant is obtained. The process can take longer and cost more than probate of a will.

Who Inherits Under NSW Intestacy Rules?

The law groups relatives into categories and works through them in order. Once an eligible category is found, distribution stops there—more distant relatives receive nothing.

Surviving Spouse (including de facto partner)

• Spouse only, or spouse + children of that relationship only: The spouse inherits the entire estate.

• Spouse + children from a previous relationship (blended family situation): The spouse receives:

  • All personal effects (household items, cars, etc.)

  • A statutory legacy (a fixed sum adjusted quarterly for CPI under s 106 of the Succession Act; currently around $615,000 for deaths in the July–October 2026 quarter, but always check the exact figure applicable to the date of death)

  • Half of any remaining estate after the legacy

  • The other half is shared equally among all the deceased’s children (including those of the current relationship).

    
    

If the estate is smaller than the statutory legacy, the spouse takes everything and the children from the prior relationship receive nothing. Multiple spouses (e.g., a married spouse and a de facto partner) trigger special sharing rules, often requiring agreement or a court order.

A de facto partner must generally have lived with the deceased on a genuine domestic basis for at least two continuous years, or the relationship must have produced a child.

No Surviving Spouse

The estate passes equally to the children. If a child has already died, their share goes to their own children (the deceased’s grandchildren), and so on down the line (per stirpes).

No Spouse or Children

The order continues as follows:

1. Parents (equally)

2. Brothers and sisters (including half-siblings; nieces/nephews take a deceased sibling’s share)

3. Grandparents

4. Aunts and uncles (first cousins take a deceased aunt/uncle’s share; more remote descendants of cousins do not)

5. The Crown (NSW Government) as bona vacantia if no eligible relatives can be found.

   
   

A relative must generally survive the deceased by 30 days to inherit. Adopted children are treated as biological children; step-children generally are not.

Common Problems with Intestacy

• Blended families often see outcomes that feel unfair—adult children from earlier relationships may receive far less than expected, while a new spouse receives the bulk.

• No provision for friends, charities, carers, or unmarried partners who do not qualify as de facto.

• Delays and costs: Locating and proving relatives (especially overseas) can take years. The NSW Trustee & Guardian frequently handles complex intestate estates.

• Family disputes and potential family provision claims under the same Act can further complicate matters.

• Assets that pass outside the estate (jointly owned property with right of survivorship, superannuation with a binding nomination, life insurance with nominated beneficiaries) are not affected by intestacy rules.

  
  

Why Make a Will?

A valid will lets you:

• Choose your beneficiaries and the proportions they receive

• Appoint the executor(s) you trust

• Name guardians for minor children

• Make specific gifts or create trusts

• Reduce the risk of disputes and delays

  
  

Intestacy rules are a default safety net, not a personalised plan. They apply the same rigid formula regardless of your relationships, contributions, or wishes.

Important disclaimer: This is general information based on the Succession Act 2006 (NSW) as at August 2026. The statutory legacy changes quarterly with CPI, and individual circumstances (including interstate or overseas assets, prior wills, or family provision claims) can alter outcomes. Always seek personalised legal advice from a qualified NSW solicitor or the NSW Trustee & Guardian for your situation.