What Is Intestacy?
Intestacy is the legal term for dying without a valid Will. When a person dies intestate in Australia, their assets are not frozen, abandoned, or handed to the government by default — instead, they are distributed according to a set of statutory rules established by each state and territory.
These rules are called intestacy laws (sometimes referred to as succession laws or laws of succession), and they create a rigid hierarchy of beneficiaries based on family relationships. The critical problem is that these laws are generic. They cannot reflect your personal wishes, your unique family dynamics, or the promises you may have made during your lifetime.
Intestacy can also arise when a Will exists but is found to be partially or wholly invalid — for example, because it was not properly witnessed, was revoked by a subsequent marriage, or does not cover all of the deceased person’s assets. In such cases, the intestacy rules fill the gaps.
Key fact: Intestacy does not only affect people who never made a Will. It also affects those whose Wills are out of date, improperly executed, or incomplete.
When Do Intestacy Laws Apply?
Intestacy laws apply in three main situations:
- No Will exists at all — the deceased never created a Will
- The Will is invalid — it fails to meet the legal requirements for execution (e.g., not properly signed or witnessed)
- The Will does not cover the entire estate — known as partial intestacy, where some assets fall outside the Will’s provisions
In all three cases, the relevant state or territory legislation determines how the affected assets are distributed. For a summary of the legal requirements in your state, visit our state requirements guide.
How Intestacy Works: The Distribution Hierarchy
While the specific rules differ between states and territories, all Australian jurisdictions follow a broadly similar hierarchy when distributing an intestate estate. Understanding this hierarchy is essential to grasping why intestacy can produce such unexpected and unwelcome results.
Tier 1: Spouse or De Facto Partner
If the deceased is survived by a spouse or recognised de facto partner (including same-sex partners), that person is generally first in line. However, how much they receive depends on whether the deceased also had children, and whether those children are shared with the surviving partner.
In many states, the surviving partner receives:
- A statutory legacy (a fixed dollar amount, which varies by state — for example, around $350,000 to $500,000 in some jurisdictions)
- A share of the remaining estate, which may be split with children
If the deceased had children from a previous relationship, the surviving partner’s entitlement may be significantly reduced.
Tier 2: Children
If there is no surviving spouse or partner, the estate passes to the deceased’s children in equal shares. This includes biological children, legally adopted children, and in some jurisdictions, stepchildren who were part of the household.
If a child has predeceased the intestate person but left children of their own (i.e., the deceased’s grandchildren), those grandchildren typically inherit their parent’s share. This is known as distribution per stirpes.
Tier 3: Parents
If the deceased had no spouse, partner, or children, the estate passes to their parents in equal shares (or entirely to one parent if only one survives).
Tier 4: Siblings
If there are no surviving parents, the estate passes to the deceased’s brothers and sisters (or their children, if a sibling has predeceased).
Tier 5: Grandparents, Aunts, Uncles, and Cousins
The hierarchy continues outward through the extended family — grandparents, then aunts and uncles, then first cousins — each tier only inheriting if all higher tiers are exhausted.
Tier 6: The Crown (Bona Vacantia)
If no eligible relatives can be found anywhere in the hierarchy, the entire estate passes to the state or territory government. This is known as bona vacantia — literally, “ownerless goods.” While rare, it does happen, particularly for people who were estranged from their families or who had no close relatives.
State-by-State Differences
Although the hierarchy above applies generally across Australia, the details vary meaningfully between jurisdictions. Some key differences include:
- Statutory legacy amounts — The fixed sum a surviving spouse receives before the estate is divided further. This amount differs between states and is periodically updated.
- Treatment of jointly owned property — In some states, jointly owned property passes automatically to the surviving co-owner (via survivorship) and is not part of the intestate estate.
- Recognition of de facto relationships — While all states and territories now recognise de facto partners (including same-sex partners), the evidentiary requirements and qualifying periods can differ.
- Distribution ratios — The proportions in which a surviving spouse and children share the estate vary between jurisdictions.
For state-specific details, see our guides for New South Wales and Victoria, or visit the full state requirements page.
Important: Intestacy laws are determined by the state or territory where the deceased was domiciled (permanently resident) at the time of death — not where the assets are located.
Real-World Scenarios Where Intestacy Causes Problems
The intestacy hierarchy may seem logical in the abstract, but in practice it frequently produces outcomes that are deeply unfair to the people who mattered most to the deceased. Here are some of the most common problem scenarios.
Scenario 1: De Facto Partners Left Vulnerable
Sarah and James had been living together for six years. They shared a home (in James’s name), had joint finances, and considered themselves life partners. When James died suddenly without a Will, Sarah assumed she would inherit the house.
In reality, Sarah had to prove the de facto relationship through legal proceedings before she could claim anything under intestacy. James’s estranged parents contested her claim. The dispute took 14 months and cost over $40,000 in legal fees. Sarah ultimately received her entitlement, but the delay and expense were devastating.
With a valid Will, James could have left everything to Sarah unambiguously, avoiding any need to prove the relationship.
Scenario 2: Blended Families and Competing Claims
Michael had two children from his first marriage and was in a de facto relationship with Anna, who had one child of her own. Michael wanted Anna and all three children to benefit equally from his estate.
Under intestacy, Anna received a statutory legacy and a portion of the estate. Michael’s biological children shared the remainder. Anna’s child received nothing — stepchildren are not automatically recognised as beneficiaries under intestacy laws in most states.
With a valid Will, Michael could have included Anna’s child as a beneficiary and distributed his estate exactly as he wished.
Scenario 3: Estranged Relatives Inherit
Priya had not spoken to her brother in over 15 years following a bitter family dispute. She was close to her best friend, Mei, and had always told Mei that she wanted her to inherit her jewellery and savings.
When Priya died intestate, her entire estate passed to her estranged brother under the intestacy hierarchy. Mei received nothing. Verbal promises, no matter how sincere or frequently repeated, carry no legal weight without a valid Will.
Scenario 4: Charities and Causes Miss Out
David was a lifelong supporter of medical research charities. He donated regularly and had expressed his wish to leave a significant portion of his estate to cancer research.
Under intestacy, charitable bequests are impossible. David’s estate passed entirely to his distant relatives — people he barely knew — while the causes he cared about received nothing.
Scenario 5: Delays Affect Dependants
When Lisa died unexpectedly, her teenage children needed immediate financial support for living expenses, school fees, and counselling. Because Lisa had no Will, the court had to appoint an administrator before any assets could be accessed. The process took over six months. During that time, Lisa’s children relied on the charity of relatives and community fundraising.
With a valid Will naming an executor, the administration process could have begun immediately, and interim access to funds could have been arranged far more quickly.
De Facto and Same-Sex Partners Under Intestacy
All Australian states and territories now recognise de facto relationships, including same-sex partnerships, for the purposes of intestacy distribution. This is an important legal protection, but it comes with caveats.
To qualify as a de facto partner under intestacy laws, a person must generally demonstrate that the relationship:
- Was genuine and committed
- Involved cohabitation (typically for at least two years, though exceptions exist for relationships that produced children)
- Was recognised as a couple by family, friends, and the community
The problem is that proving a de facto relationship after a partner’s death can be legally and emotionally gruelling — especially if family members of the deceased contest the claim. Evidence may include shared finances, correspondence, statutory declarations from friends, lease agreements, and more.
Married couples do not face this burden of proof. A marriage certificate is conclusive evidence of the relationship. De facto partners have no equivalent document, which makes a valid Will even more critical for their protection.
For same-sex couples who are not married, the vulnerability is identical. While the law recognises same-sex de facto relationships, the absence of a Will forces a surviving partner into a legal process they should never have to endure during a period of grief.
The Cost of Dying Intestate
Beyond the emotional toll, intestacy carries real financial costs that directly reduce the value of the estate your loved ones receive.
Administrator Appointment
Without a Will, there is no named executor. The court must appoint an administrator to manage the estate. This process involves a legal application, which takes time and costs money.
Administration Bonds
In some states, an administrator may be required to obtain a surety bond — a form of insurance that protects the estate against mismanagement. This bond can cost thousands of dollars and adds another layer of delay and expense.
Legal Fees
Contested intestate estates generate far higher legal fees than estates with a clear, valid Will. Disputes over de facto status, the interpretation of family relationships, and competing claims from multiple tiers of the hierarchy can escalate costs rapidly.
Delays
The average time to administer an intestate estate is significantly longer than one with a Will. While a straightforward Will-based estate might be settled in three to six months, an intestate estate — particularly a contested one — can take 12 months to several years.
Tax and Financial Implications
Delays in estate administration can result in missed financial opportunities, penalties on overdue accounts, lapsed insurance policies, and depreciation of assets that could have been sold or transferred promptly.
The bottom line: Dying intestate almost always costs your estate more and takes longer than dying with a valid Will. The people who bear those costs are the people you care about most.
How to Avoid Intestacy
The solution is straightforward: create a valid Will.
A valid Will in Australia must generally meet the following requirements:
- Be in writing — handwritten (holographic) Wills are recognised in some states but are strongly discouraged due to the risk of ambiguity and invalidity
- Be signed by the testator (the person making the Will) in the presence of two witnesses
- Be witnessed by two adults who are not beneficiaries under the Will
- Demonstrate testamentary capacity — the testator must understand what they are doing, the extent of their assets, and the claims others may have on their estate
Beyond these basics, a good Will should:
- Name an executor (and a substitute executor)
- Clearly identify all beneficiaries and their entitlements
- Appoint guardians for any minor children
- Address specific gifts, residual estate distribution, and contingencies
- Be reviewed regularly and updated after major life events
For a detailed walkthrough, read our guide to writing your Will.
Take Control of Your Estate
Intestacy laws exist as a safety net, but they are a blunt instrument. They cannot distinguish between a beloved partner and an estranged sibling. They cannot honour a promise made to a friend. They cannot support a charity you spent your life championing. And they cannot appoint the right person to raise your children.
The only way to ensure your estate is distributed according to your wishes is to create a valid, up-to-date Will.
With ezyWill, you can create a comprehensive Will online that is tailored to your state, your family structure, and your specific wishes. The process takes less than an hour, costs a fraction of traditional legal fees, and gives you peace of mind that your loved ones are protected.
Do not leave your legacy to a formula written by Parliament. Write your own.
Create your Will with ezyWill today and ensure your estate is handled exactly the way you intend.
This article is for general informational purposes only and does not constitute legal advice. Intestacy laws differ between Australian states and territories and are subject to change. For advice on your specific circumstances, we recommend consulting a qualified solicitor. ezyWill provides legally structured Will templates tailored to Australian state and territory requirements.
