What Happens If You Die Without a Will in Australia?
When someone passes away without leaving a valid will, the situation can become stressful and complicated for their loved ones. In Australia, this is known as dying “intestate”. The estate is then distributed under intestacy laws, which differ slightly from state to state but follow a similar structure. Understanding what happens in this scenario is crucial to avoid disputes and ensure your family is protected.
Why a Will Matters
A will is a legal document that outlines how you want your assets distributed after your death. It provides clarity, minimises family disputes, and ensures your estate is handled according to your wishes. Without one, the law—not you—decides who receives your property, investments, and personal belongings.
Intestacy Laws in Australia
In the absence of a valid will, intestacy laws apply. These rules prioritise spouses, children, and other close relatives. The exact order of inheritance varies by jurisdiction, but broadly:
Spouse and children: If you leave behind a spouse and no children, your spouse usually inherits the entire estate. If both a spouse and children survive you, the estate may be divided between them.
Children only: Where no spouse survives, children inherit the estate equally.
Parents, siblings, and extended family: If you have no spouse or children, the estate passes to your parents, siblings, nieces and nephews, and further relatives.
The state: If no eligible relatives can be found, the estate may ultimately pass to the government
This legal framework may not reflect your wishes—for example, unmarried partners, stepchildren, or close friends might not inherit anything unless specified in a will.
The Role of an Administrator
When someone dies intestate, the court appoints an administrator to manage the estate. This role is similar to that of an executor named in a will, but instead of carrying out your wishes, they follow the intestacy laws. The administrator collects assets, pays debts, and distributes what remains according to the legal rules.
Potential Family Disputes
Dying without a will can cause confusion and conflict among surviving relatives. Common issues include:
Disagreements over asset distribution
Delays in accessing funds for funeral expenses or living costs
Stepchildren or de facto partners being excluded
Costly legal battles if someone contests their entitlement
These disputes can place financial and emotional strain on families at an already difficult time.
State Differences in Intestacy
While the principles are similar across Australia, there are key differences between states and territories. For instance, in New South Wales, if you die leaving both a spouse and children, the spouse generally receives a preferential share of the estate before children inherit. In Victoria, the estate may be distributed differently if there are multiple spouses or de facto partners.
Because intestacy laws are complex, legal advice is essential to determine how an estate will be divided.
How to Protect Your Loved Ones
The best way to avoid intestacy issues is to prepare a valid will. A solicitor experienced in Wills & Estate Planning Law can ensure your will complies with legal requirements and accurately reflects your wishes. Steps to take include:
Making a will - Document who should inherit your assets.
Updating regularly - Life changes such as marriage, divorce, or having children can affect your will’s validity.
Appointing an executor - Choose someone you trust to carry out your wishes.
Seeking legal advice - DIY will kits may not be sufficient for complex estates. Professional advice provides peace of mind.
The Risks of Dying Without a Will
Without a will, you risk leaving your family vulnerable to:
Unintended inheritance outcomes
Delays in estate distribution
Increased legal costs
Family conflict and emotional stress
Taking proactive steps now can prevent these complications later.
Dying without a will in Australia means your estate is distributed under intestacy laws, which may not reflect your personal wishes. Loved ones may face unnecessary hardship, disputes, and delays in accessing their inheritance.
At New South Lawyers, our experienced team in Wills & Estate Planning Law can help you prepare a legally sound will that safeguards your assets and protects your loved ones. Don’t leave things to chance—
