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No will?
The law decides.
When someone dies without a valid will, a fixed legal formula called "intestacy" determines who inherits. The outcome may not match what they wanted.
When someone dies "intestate" (without a valid will), the Administration Act 1969 sets out who inherits. This applies regardless of what the deceased may have said they wanted. Promises made during their lifetime have no legal weight unless recorded in a valid will.
The intestacy waterfall.
Assets flow down through this hierarchy until they're fully distributed.
Spouse or Partner
The surviving spouse or civil union/de facto partner receives the first and largest share of the estate.
- Personal chattels (furniture, cars)
- $155,000 prescribed amount
- One-third of remaining estate
- Personal chattels (furniture, cars)
- $155,000 prescribed amount
- Two-thirds of remaining estate
- Parents receive remaining one-third
If no parents survive, spouse receives entire estate.
Children
Children share any part of the estate not taken by the spouse. If there is a surviving spouse, children share two-thirds of what remains. If no spouse, children share equally.
Important: Stepchildren do not inherit unless formally adopted. Adopted children have the same rights as biological children.
Parents
If the deceased had no surviving spouse or children, parents inherit equally. If only one parent survives, they receive the entire estate.
Extended Family
If no parents survive, the estate passes down through siblings, then grandparents, then aunts and uncles, in order of priority under the Act.
If no relatives can be found, the estate ultimately passes to the Crown.
When intestacy goes wrong.
The formula doesn't account for the complexities of modern families and relationships.
De facto relationships contested
Family members may disagree about whether a relationship met the legal threshold, causing delays and costly disputes.
Blended families
A spouse from a second marriage and children from a first may have competing interests that the intestacy formula doesn't balance well.
Certain people receive nothing
Friends, stepchildren who weren't adopted, charitable causes, and extended family outside the priority list receive nothing.
Business complications
Business partners may have succession plans that conflict with intestacy rules. A surviving spouse may inherit a business share they know nothing about.
Administration is still required
Dying without a will doesn't mean the estate can be divided informally. Someone still needs legal authority to deal with assets.
Letters of Administration
Instead of probate (which requires a will), someone applies for "letters of administration." This gives them authority to gather assets, pay debts, and distribute according to the intestacy rules.
Same duties apply
The administrator has the same duties as an executor. They must act impartially, keep records, and wait the appropriate time before final distribution.
Key Takeaways
Dying intestate means a fixed legal formula determines who inherits
Spouse or partner usually receives the first and largest share
Stepchildren who weren't adopted receive nothing under intestacy
Someone must still apply for legal authority to administer the estate
Making a will lets you decide who receives what
Related Guide
Ready to make a will? Follow our step-by-step guide to the process.
Read the Creating Your Will GuideRelated Reading
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