What happens if someone dies without a will in NSW?

When someone passes away, most people assume their assets will simply go to their closest family members.

But what if there is no will?

In New South Wales, dying without a valid will, known as dying “intestate”, triggers a strict legal process that determines who controls the estate and who ultimately inherits. The outcome may not always reflect what the deceased would have wanted.

What Does “Dying Intestate” Mean?

A person dies intestate when they pass away without a valid will in place.

In these situations, the estate is not distributed based on personal wishes, conversations, or informal arrangements. Instead, it is governed by the Succession Act 2006 (NSW), which sets out a fixed legal formula for distribution.

Who Takes Control of the Estate?

When there is a valid will, an executor is appointed to manage the estate. Without a will, there is no automatic authority.

Instead, an eligible person, usually a spouse, de facto partner, or close family member, must apply to the Supreme Court of NSW for Letters of Administration.

Once appointed, that person becomes the administrator and is responsible for:

• Identifying assets and liabilities
• Paying debts and expenses
• Distributing the estate according to the law

Who Inherits the Estate?

NSW intestacy laws follow a strict hierarchy of beneficiaries.

1. Spouse or De Facto Partner

In most cases, the surviving spouse or de facto partner inherits the entire estate, particularly where there are no children from previous relationships.

If there are children from another relationship, the estate is divided under a statutory formula, with the spouse receiving a significant portion and the remainder shared with those children.

2. Children

If there is no spouse, the estate generally passes equally to the deceased’s children.

If a child has already passed away, their share may pass to their own children, meaning the deceased’s grandchildren.

3. Parents, Siblings and Extended Family

If there is no spouse or children, the estate passes in the following order:

• Parents
• Siblings
• Grandparents
• Aunts, uncles, and cousins

4. No Relatives?

If no eligible relatives can be identified, the estate may ultimately pass to the NSW Government.

What About Superannuation and Joint Assets?

Not all assets form part of the estate.

• Jointly owned property often passes automatically to the surviving owner
• Superannuation and life insurance may be paid directly to nominated beneficiaries

This can significantly affect what is actually distributed under intestacy laws.

Why Dying Without a Will Can Be Risky

While intestacy laws aim to create a fair system, they are rigid.

They do not take into account:

• Personal relationships
• Stepchildren unless legally adopted
• Unmarried partners without clear evidence of the relationship
• Specific wishes about who should receive particular assets

This can lead to outcomes that differ from expectations and often increases the risk of disputes, delays, and additional legal costs.

Key Takeaway

Dying without a will means losing control over how your estate is managed and distributed.
Instead of your wishes guiding the outcome, a fixed legal framework determines who administers your estate, who receives your assets, and how those assets are divided.

Estate planning is not just about preparing for the future. Having a valid and up-to-date will can help protect the people and outcomes that matter most to you, while providing greater certainty about how your estate will be managed.