Dying Without a Will: The Rules of Intestacy

Dying without leaving a will is called dying intestate. Roughly one in two Australian adults don’t have a will, which means they risk dying intestate.

When you die intestate, the court doesn’t know how to distribute your property because you have not left behind any wishes or directions.

Instead, there are rules that apply that govern how your estate will be distributed. In NSW, these rules come from the Succession Act.

If you are married with no children, your estate will go to your spouse.

A spouse is defined as a person who was married to the intestate (the person who died without a will) immediately before the intestate’s death or a person who was a party to a domestic partnership with the intestate immediately before the intestate’s death. Someone may, therefore, be considered a spouse under the rules of intestacy without being legally married to the intestate.

A domestic partnership is a relationship between the intestate and another person that is a registered relationship or a de facto relationship that has either been going on continuously for two or more years, or has resulted in the birth of a child.

A registered relationship is simply a relationship that is registered under the Relationships Register Act. To be eligible for registration, the relationship must be between two adults who are not married and not related by family. There is no requirement that the couple be living together to register the relationship.

If you are married and have children with your spouse, the whole of your estate will still go to your spouse.

If you are married and have any children who were not born of you and your spouse (i.e. children of a former marriage), your spouse will receive your personal effects, a statutory legacy and half of the reminder of the estate, if there is anything remaining. The children not of the relationship will receive the other half of the remainder of the estate, if there is anything remaining.

If  you are married and have no spouse but are survived by children, the whole of your estate will go to your children in equal shares.

If you are married and have a child who predeceases you (dies before you) and that child has children who survive you, those children are entitled to the ‘presumptive share’ of the deceased child. This means if you had three children and one of them died before you but had children who survived you, those grandchildren would receive one third of the estate and your other two children would each receive one third of the estate. This example assumes that you leave no surviving spouse.

If you have  no spouse and no children, your parents will receive the whole of your estate, in equal shares. If you only have on surviving parent, they will receive the whole of your estate.

If you have no spouse, no children and no parent, your brother or sister will receive the whole of your estate. If you have multiple surviving siblings, they will receive the whole of your estate in equal shares. If your siblings do not survive you, but they have children that survive you, the whole of your estate will go to these nieces and nephews in equal shares. If, for example, your brother survives you but your sister does not, but your sister has children who survive you, your estate will be shared between them. Your brother will receive half of your estate and the children of your sister will receive the other half, to be shared equally between them. If your sister had three children you survive you, they will each receive a one third share of half of your estate.

If you have no spouse, no children, no parent and no siblings, your grandparents will receive the whole of your estate.

If you have no spouse, no children, no parent, no siblings and no grandparents, your aunt or uncle will receive the whole of your estate. Any surviving aunts and uncles will receive the estate in equal shares. If your aunt or uncle does not survive you but leave children who do survive you, those children will receive the whole of your estate in shares equal to their parent’s entitlement. For example, if you have two uncles who survive you and an aunt who predeceases you, but who leaves three children, your estate will be divided into three equal shares. Your uncles will each receive one third and the three children of your aunt will receive the last third of your estate, which will be divided equally between them.

If you die and you have no relatives at all (no entitled persons), the State will receive the whole of your estate.