Most people do not write a will because they do not want to think about dying. The problem is that they die anyway, and when they do, someone they love has to spend the next twelve to eighteen months untangling what they left behind. In New South Wales, when a person dies without a valid will, they are said to die intestate. The law then steps in and decides who inherits, in what order, and in what proportions. That order may or may not match what the person would have wanted. It rarely matches what their family expects.
This piece walks through how intestacy actually works in NSW under the Succession Act 2006, who inherits, how long it takes, and what it costs the people you leave behind.
What does “intestate” mean
Intestate is the legal term for dying without a valid will. It also covers people who left a will that fails for technical reasons (it was not properly signed, a later marriage revoked it, or the only beneficiary died first), or people whose will addresses only part of their estate. Partial intestacy is more common than people realise.
When this happens, NSW law applies a default formula to decide who inherits the estate. The rules are clear, but they do not flex around your relationships, your blended family, your charitable wishes, or anything you may have said out loud but never written down.
Who inherits in NSW, in order
The order of distribution under the Succession Act 2006 (NSW) is roughly as follows.
- If the deceased leaves a spouse and no children, the spouse takes the whole estate.
- If the deceased leaves a spouse and children, and all the children are the spouse’s children, the spouse still takes the whole estate. That changed in 2010 and surprised many people. The children inherit only if the spouse has already died.
- If the deceased leaves a spouse and children who are not all children of that spouse, the spouse receives the deceased’s personal effects, a statutory legacy (currently in the order of $530,000 plus CPI adjustments, plus interest), and half of the remaining estate. The other half is divided between the children. This is the rule that catches blended families.
- If there is no spouse, the children inherit equally. If a child has died before the deceased and left their own children, those grandchildren step into their parents’ share.
- If there is no spouse and no children, the estate moves up and outwards: parents, then siblings (and their children), then grandparents, then aunts and uncles (and their children). If none of those exists, the estate passes to the State of NSW under the doctrine of bona vacantia.
A note on de facto partners. The Succession Act treats de facto partners and registered relationships the same way it treats married spouses. However, in this case, you need to prove the relationship, especially if there is a separated legal spouse still in the picture. Evidence in this case matters, such as shared finances, a shared residence and evidence of your life together. Without a will, that evidence has to be assembled by someone else after you are gone.
The blended family trap
The most common source of unhappy surprises in intestacy is the blended family. Picture a couple where one or both have children from a previous relationship. They live together, they share a home, they share finances. One of them dies without a will.
The surviving partner will not inherit everything. They will receive the personal effects, a statutory legacy, and half of the remaining estate. The other half is divided among the children of the deceased, including children from earlier relationships who may not have been close to the surviving partner.
In a house-rich, cash-poor estate, this can force a sale of the family home. The surviving partner may need to buy out the children’s share, refinance, or move. The relationships between the surviving partner and the deceased’s children often do not survive the process.
A simple, properly drafted will would have prevented all of it.
How long does it take
Probate (the process where a court confirms a will and authorises an executor to deal with an estate) typically takes a few months from death to grant if everything is in order.
Letters of Administration, the equivalent process when there is no will, takes longer. The court has to be satisfied about who is entitled to administer the estate, who the next of kin are, and what evidence supports that. From the date of death to a grant of Letters of Administration, six to nine months is not unusual. From grant to final distribution can add another six to twelve months on top.
If there is a dispute, a family provision claim, or a contested entitlement, the timeline can stretch out to several years.
The money problem before the administration
The day someone dies, their bank accounts are frozen. Joint accounts can usually still be operated by the surviving holder, but accounts held solely in the deceased’s name are locked until probate or Letters of Administration are granted.
Funeral expenses, mortgage payments, utility bills, and the day-to-day costs of running an estate continue regardless. The family often has to fund these out of pocket and be reimbursed later. For families without ready cash, this can be a serious squeeze on top of everything else they are dealing with.
What it costs
Probate costs are scaled based on the gross value of the estate’s assets, covering mandatory Supreme Court filing fees, regulated solicitor scale fees, and online advertisement fee. The larger the size and value of the estate, the larger amount of work required to obtain probate and to administer estate assets and the greater the cost.
If beneficiaries dispute the administration, or if a family provision claim is made, costs escalate quickly. Money that the deceased intended for their family ends up paying for lawyers and court costs instead.
Family provision claims and contested estates
Even with a will, certain people can apply to the court for a larger share of the estate under the family provision rules. Eligible applicants include spouses, former spouses, de facto partners, children, and dependants. Grandchildren and former household members can also apply in some cases.
Without a will, the risk of these kinds of claims can increase. In this case, the default distribution may not reflect the deceased’s wishes, and dying intestate signals to the court that the deceased did not plan their affairs. Estates with clear, properly drafted wills are not immune to claims, but they are far better placed to defend them.
Write the will
The cost of a properly drafted will is small. The cost of dying without one falls on the people you love, at the worst possible time. If you have a partner, children, a property, a business, superannuation, or anyone who depends on you, a will is not optional. It is the single most useful piece of legal paperwork most people will ever sign.
How Chidiac Legal can help
We help individuals, couples and families with wills, estate planning, and estate administration. We deal with simple and complex matters (blended families, business interests, asset protection, family provision risk, overseas assets). We explain everything in plain English, and we give you a clear price up front.
Our forthcoming guide to wills and estate planning in NSW will walk you through the decisions to make and the documents to put in place. In the meantime, call us on 02 9707 3888 to book a consultation, or contact us here.
NSW law applies a default order under the Succession Act 2006: spouse first, then children, then parents, then siblings, then more distant relatives. If there are no eligible relatives, the estate passes to the State of NSW.
Yes. Under the Succession Act 2006 (NSW), de facto partners and registered partners are treated the same as married spouses for intestacy. The relationship must be provable, which can be difficult if there is no will and no clear documentation.
The surviving spouse or partner receives personal effects, a statutory legacy of approximately $530,000 plus CPI, and half of the remaining estate. The other half is divided among the deceased’s children, including those from previous relationships.
From the date of death to a grant of Letters of Administration, allow six to nine months. From grant to final distribution, allow another six to twelve months. Contested estates can take significantly longer.
Yes. If you leave a will, but it only deals with part of your estate, the remainder is distributed under the intestacy rules. This is more common than people realise, especially with older wills that have not been updated.
