Dying without a valid Will in New South Wales can have significant and often unintended consequences for your loved ones. When someone dies intestate (without a Will), their estate is distributed according to the NSW intestacy laws under the Succession Act 2006 (NSW), not necessarily in the way the deceased may have intended.
In this article, we explain what happens when a person dies without a Will in NSW, who inherits under intestacy, and why having a properly drafted Will is one of the most important things you can do for your family.
What Does ‘Dying Intestate’ Mean?
In legal terms, intestacy occurs when a person dies without a valid Will, or when a Will does not effectively dispose of all their assets. This may happen because:
- No Will was ever made
- The Will is invalid (e.g. not properly signed or witnessed)
- The Will fails to deal with all parts of the estate
- All beneficiaries named in the Will have died
In these cases, the estate is distributed according to a strict legal formula — without regard to personal wishes, relationships, or unique family circumstances.
Who Inherits Under Intestacy Laws in NSW?
Under Chapter 4 of the Succession Act 2006 (NSW), the law sets out a hierarchy of eligible relatives who may inherit the estate. The most common scenarios are:
- If the deceased had a spouse (including de facto):
- The spouse receives the entire estate, unless there are children from another relationship.
- If there is a spouse and children from another relationship:
- The spouse is entitled to:
- Personal effects
- A statutory legacy (currently $591,825 as at August 2025, adjusted quarterly)
- Half of the remainder of the estate
- The children from the previous relationship share the other half equally.
- If there is no spouse:
- The children inherit the estate in equal shares.
- If there is no spouse or children:
- The order of inheritance goes to:
- Parents
- Siblings
- Nieces and nephews
- Grandparents
- Aunts and uncles
- First cousins
- If no eligible relatives can be found:
- The estate is passed to the NSW Government (the Crown) under the legal doctrine of bona vacantia.
Problems With Dying Intestate
Dying without a Will creates a number of legal, financial, and emotional difficulties for those left behind. These may include:
- Delays in administering the estate
- Unintended beneficiaries receiving part of the estate
- Excluded family members (e.g. stepchildren, long-term partners not legally recognised)
- Disputes or legal challenges from family or dependents
- Increased legal costs due to the complexity of intestate estates
Having a valid Will ensures your wishes are carried out, simplifies administration, and gives your family clarity and certainty during a difficult time.
Appointing an Administrator
When there is no Will, there is no named executor. Instead, someone (usually a family member) must apply to the NSW Supreme Court for Letters of Administration. This process can be time-consuming and often requires legal assistance.
What Assets Are Affected?
Not all assets pass through your Will or estate. Intestacy laws only apply to assets you solely own. Assets not governed by a Will may include:
- Jointly owned property (usually passes to the surviving owner)
- Superannuation (governed by trustee discretion or binding nominations)
- Life insurance (payouts go to nominated beneficiaries)
- Assets held in trusts or companies
Even with a Will, estate planning advice is essential to ensure all assets are properly addressed.
How Can You Avoid Intestacy?
The best way to avoid intestacy is to:
- Make a valid Will with the help of an experienced solicitor
- Review your Will regularly, especially after major life events (marriage, divorce, children, property acquisition)
- Ensure proper witnessing and execution in accordance with NSW law
- Consider powers of attorney and enduring guardianship as part of a full estate plan
Dying without a Will in NSW leaves your estate vulnerable to rigid intestacy rules that may not reflect your relationships or intentions. The consequences can be costly, time-consuming and emotionally distressing for your loved ones.
A professionally drafted Will provides peace of mind, protects your legacy, and ensures your family is looked after the way you choose.
At Tonkin Drysdale Partners, our Wills & Estates team has been guiding Central Coast families for generations. We offer clear, compassionate advice tailored to your unique circumstances.
