Dying without a legally valid Will in Australia is known as dying intestate. When this happens, your assets are not distributed according to your personal wishes. Instead, state or territory intestacy laws determine who inherits your estate. While these laws follow a general order of relatives, they may not reflect what you would have wanted. This can cause delays, family conflict, and added stress for loved ones left behind.
This article explains what happens when someone dies without a Will in Australia, how intestacy laws work, and why it's important to plan ahead.
Understanding Intestacy in Australia
When someone dies intestate, their estate is distributed according to a legal formula set by the relevant state or territory. The formula determines who inherits your assets, in what proportion, and in what order. Each state and territory has its own legislation, but the general rules are similar.
In most cases, your spouse or de facto partner will inherit all or a significant portion of your estate. If you have children, your estate is typically split between your partner and your children. If you have no spouse or children, your estate may go to your parents, siblings, nieces and nephews, or even distant relatives. If no eligible relatives are found, your assets can be claimed by the government.
What Happens to Your Assets If You Die Without a Will
So, what happens to your assets if you die without a will? If you die without a Will, your assets will be distributed as follows:
- Spouse or de facto partner: If you leave behind a spouse or long-term de facto partner, they are often entitled to most or all of your estate. This can depend on whether you also have children from another relationship.
- Children: If you have children but no spouse, your children will typically inherit your estate in equal shares. If your children are under 18, a trustee will manage the inheritance until they reach legal adulthood.
- No spouse or children: If you have neither, your estate may pass to your parents. If they are no longer alive, it will go to siblings, nieces and nephews, and so on.
- No surviving relatives: If no one is eligible under the intestacy rules, your estate will be passed to the state government.
This process can lead to unintended outcomes. A long-term friend, carer, or stepchild may receive nothing, and charitable organisations you may have wanted to support may also be excluded.
Who Administers the Estate Without a Will
Without a Will, there is no appointed executor. Instead, someone must apply to the Supreme Court for Letters of Administration. This is a legal document that gives them the authority to manage the estate.
Usually, a close family member applies to be the administrator. The process can take longer than probate, especially if multiple people wish to be appointed or if there are disagreements among relatives. The administrator is responsible for identifying assets, paying debts, and distributing the estate according to the law.
What About Child Care After a Parent's Death?
One of the most difficult consequences of dying without a Will is the uncertainty it creates for the care of minor children. A Will allows you to nominate a guardian. Without this guidance, the Family Court will decide who will care for your children based on their best interests.
While courts aim to make the right decision, the lack of a Will can lead to disputes or arrangements that do not reflect your preferences. For more information, visit our page on child care after a parent's death.
Common Complications from Dying Intestate
Dying without a Will can cause a number of issues for your loved ones:
- Delays in estate distribution – Sorting out an intestate estate often takes longer than distributing one with a valid Will.
- Family conflict - Disagreements can arise over who should manage the estate or how assets are divided.
- Missed intentions - People or charities you care about might be left out entirely.
- Higher costs - Legal and court fees can reduce the value of the estate.
These complications make an already difficult time more stressful for grieving families.
Why You Should Have a Will
A Will gives you control over your assets and peace of mind for your family. With a Will, you can:
- Choose who will receive your property, savings, and belongings
- Appoint someone you trust to manage your estate
- Nominate guardians for your children
- Express your wishes clearly to avoid confusion or disputes
It is also important to regularly update your Will, especially after major life events like marriage, divorce, or the birth of a child. Our team of experts in wills and estate planning can help you through the process.
Do You Need a Solicitor to Create a Will?
While DIY Will kits are available, they often leave room for mistakes or ambiguity. A solicitor ensures your Will complies with legal requirements, reflects your wishes clearly, and considers all your assets, family dynamics, and legal obligations.
Working with a trusted solicitor in Sydney is one of the best ways to protect your estate and reduce the risk of complications.
Take Control of Your Future Today
What happens if you die without a Will in Australia? The answer is rarely simple, and often not what you would have wanted. Intestacy laws can create challenges for your family, delay important decisions, and result in outcomes that do not reflect your values.
By taking the time to plan ahead, you can make sure your wishes are respected and your loved ones are supported. Whether you need help creating a Will or managing a loved one's estate, our experienced team is here to assist.
Contact Watkins Tapsell today for personalised advice on Wills, estate planning, and estate administration.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.