Dying without a Will does not mean your estate is seized by the government, and it does not mean your family can agree on what seems fair. It means a formula written by Parliament decides who inherits, in what shares and in what order — and the formula takes no account of what you would have wanted, who you had fallen out with, or who actually cared for you. This article sets out how that formula works in New South Wales.
What “intestate” means
A person dies intestate if they leave no Will at all. A person dies partially intestate if they leave a Will disposing of only part of their estate — which happens more often than people expect, usually because an asset was acquired after the Will was signed, or a beneficiary died first and no substitute was named.
Intestacy also catches a Will that fails. A document that does not meet the legal requirements can be found invalid, and the estate is then distributed as though no Will existed. Our post on the five essential elements of a valid Will in NSW explains where those documents come unstuck.
The rules sit in Chapter 4 of the Succession Act 2006 (NSW). Different rules apply where the person died before 1 March 2010.
Who the law counts as your spouse
This is the first place assumptions go wrong, and it cuts both ways.
Under section 104 of the Act, a spouse is a person who was married to the deceased, or who was in a domestic partnership with them, immediately before the death. Section 105 then defines a domestic partnership as a de facto relationship that has continued for at least two years, or that has resulted in the birth of a child.
Two consequences follow. A de facto partner of several years is a spouse for intestacy purposes whether or not the family regards them that way. And a married person who separated years ago but never divorced remains a spouse — separation does not end a marriage. Where someone has both a long-estranged husband or wife and a current de facto partner, the law treats them as having two spouses, and special rules apply.
What a surviving spouse receives
Where the deceased leaves a spouse and either no children, or only children of that same spouse, the spouse takes the whole estate. There is no automatic share for the children. This surprises people, and it is usually the sensible result — the surviving parent provides for the children in the ordinary way.
The position changes where the deceased leaves a spouse and a child from an earlier relationship. The spouse is then entitled to:
- the deceased’s personal effects
- a statutory legacy — a sum of money, described below
- one half of whatever remains of the estate
The other half of the remainder is shared equally between all of the deceased’s surviving children, including the children of the surviving spouse. If the estate is not large enough to cover the statutory legacy, the spouse takes everything.
| Who survives the deceased | Who inherits |
| Spouse, no children | Spouse takes the whole estate |
| Spouse and children, all of that spouse | Spouse takes the whole estate |
| Spouse and a child of an earlier relationship | Spouse takes personal effects, the statutory legacy and half the remainder; all children share the other half equally |
| Children, no spouse | Children share equally |
| No spouse or children | Parents, then brothers and sisters, then grandparents, then aunts and uncles |
| No relatives in any of those classes | The State |
Where there are two spouses, the spousal share is distributed according to a written agreement between them, an order of the Court, or in equal shares.
The statutory legacy, and why the figure moves
The statutory legacy is the mechanism that protects a surviving spouse in a blended family. It is not a round number, and it is not fixed.
Section 106 sets a base amount of $350,000, adjusted by the ratio of two Consumer Price Index numbers: the index number for the last quarter published before the date of death, divided by the index number for the December 2005 quarter. Where payment of the legacy is delayed, the Act provides for interest.
Indexation has done a great deal of work since 2006. The NSW Government’s guidance put the figure at $587,649 in May 2025. That date matters. What governs is the CPI quarter before the death, not the date the estate is administered — so an estate administered in 2026 for a person who died in 2023 uses the 2023 figure, and a later death produces a higher number. Have the calculation done for the particular date of death rather than taking a figure from a website, including this one.
The size of the legacy is why blended-family intestacies so often end in dispute. In a modest estate it can absorb almost everything, leaving the children of a first relationship with very little. In a large estate it is a small slice.
No spouse? The order of entitlement
Where there is no surviving spouse, the estate passes down a fixed hierarchy. Each class must be exhausted before the next is reached: children, then parents, then brothers and sisters, then grandparents, then aunts and uncles.
Within a class the shares are equal. A deceased child’s share generally passes to that child’s own children; a deceased sibling’s share to the nieces and nephews; and a deceased aunt’s or uncle’s share to their children, the deceased’s first cousins.
There is no scope to recognise which relative was closest to the deceased, which one provided care in the final years, or which one had not been seen in decades.
If no relative within those classes can be found, the estate passes to the State. Establishing that no relatives exist can take considerable research, and the Supreme Court may need to be satisfied that a thorough next of kin enquiry has been done.
What intestacy cannot do
The formula distributes property. It does nothing else, and the gaps are where the real damage is done.
- It does not appoint an executor. Someone must apply to be appointed administrator, which takes time and costs the estate money.
- It does not appoint a guardian for your children. A Will can express your wishes about who raises them. Intestacy is silent.
- It cannot make a specific gift. The house to one child, the business to another, a sum to a grandchild — none of that is possible.
- It cannot create a testamentary trust. A child with a disability, a beneficiary with a creditor problem, a young adult who should not receive a lump sum — intestacy cannot protect them.
- It gives nothing to a stepchild, a carer or a charity, however close the relationship.
- It does not deal with superannuation. Death benefits are usually paid by the fund trustee, outside the estate, unless directed to the estate.
Someone still has to administer the estate
Where there is no Will, the equivalent of probate is a grant of letters of administration from the Supreme Court of New South Wales.
The Court generally grants administration to the person or people with the greatest entitlement in the estate — usually a spouse or children — or to NSW Trustee and Guardian. The Supreme Court of NSW expects the application to be filed within six months of death; a later application requires an explanation of the delay. Where some beneficiaries have not consented, the Court may require an administration bond with sureties — a real obstacle for a family already under strain, as Legal Aid NSW explains.
Intestacy does not shut out a family provision claim. An eligible person can still apply for provision from an intestate estate, and our post on who can contest a Will in NSW explains the strict twelve-month time limit.
Why this matters more than it used to
Intestacy was designed around a household that is now one of several common arrangements. Separation and repartnering are unremarkable, and the result is a large number of households in which one partner has children from an earlier relationship — precisely the circumstance in which the statutory legacy and the half-share split decide the outcome, and in which that outcome is least likely to match anyone’s expectations.
Practical first steps
- Check whether a Will exists before assuming it does not. Ask the deceased’s solicitor, bank and NSW Trustee and Guardian, and search home papers. Our note on what to do if someone close to you dies sets out the early steps.
- Identify every possible spouse. A separated but undivorced husband or wife, and a de facto partner of two years or more, both count.
- Work out what is actually in the estate. Jointly held assets pass to the surviving owner and superannuation is usually paid outside the estate, so the intestate estate is often smaller than the family assumes.
- Have the statutory legacy calculated for the date of death, not taken from a published figure.
- If you are reading this about your own affairs, make a Will. While you are there, deal with enduring powers of attorney and enduring guardianship, which cover the period before death that a Will cannot reach.
The Bottom Line
Intestacy is not chaos, and it is not confiscation. It is a rigid formula that works tolerably well for a first marriage with shared children and poorly for almost every other arrangement. It cannot name a guardian, make a specific gift, protect a vulnerable beneficiary or recognise a stepchild or a carer. If your family does not look like the one the formula was built for — and many do not — a valid Will is the only way to close the gap between what the law will do and what you would have chosen.
If you need a Will prepared, or you are dealing with the estate of someone who died without one, don’t hesitate to get in touch with one of our friendly Estate Planning Lawyers Central Coast. Contact us and we can work out what the estate requires.
This article is general information only and does not constitute legal advice.
