Dying without a will in Australia: what intestacy actually does to your estate

Dying without a will is not a neutral act. It is an instruction — to the state — to distribute your estate according to a default formula that almost certainly does not match what you would have chosen, and quite possibly does not match what your family expects.

Lawyers call this intestacy. Each Australian state and territory has its own succession or administration law that decides who gets what when there is no will. The general principle is the same across the country — spouse and children take priority, then parents, then siblings, then extended family. But the formulas, the thresholds, and the definitions of "spouse" differ from state to state.

Why people die intestate

Australians do not avoid making a will because they do not care. They avoid it because:

• It feels morbid, so they keep putting it off.
• They believe their situation is "simple" and everything will go to the spouse anyway — which is sometimes true and often not.
• They imagine it will be expensive, or that they need a solicitor for a multi-hour consultation. For a straightforward estate, they do not.
• They started, got stuck on a clause, and never finished.

The actual cost of not having a will is hidden — paid by the family, after the fact, in delays, legal fees, contested claims, and sometimes outright loss of inheritance to the wrong party.

The default formulas, state by state

Each Australian jurisdiction has its own legislation that operates when someone dies without a will. Below is the source of law — the actual distribution rules are detailed in the relevant Act and vary by family configuration.

The patterns are similar but the details matter. A few examples of where states diverge:

• Spouse + children from the same relationship. NSW, VIC, QLD, TAS and the ACT generally give the entire estate to the surviving spouse where all children are children of that spouse. SA and WA can split the estate between spouse and children even in this situation.
• Spouse + children from a previous relationship. Almost every state splits the estate between the surviving spouse and the deceased's children when there are children from a prior relationship — but the split formulas differ materially. This is the situation that hurts most often.
• De facto partners. Most jurisdictions recognise a de facto partner as a spouse for intestacy purposes, but the qualifying period varies (commonly two years of cohabitation, with exceptions for shared children).
• Multiple spouses. A small number of jurisdictions provide rules for the rare case where someone leaves both a legal spouse and a de facto partner — the estate is divided according to a specific formula or court order.

The blended-family problem

The single most common scenario where intestacy hurts is the blended family. Take a realistic example:

What happens if there are no relatives at all

If someone dies intestate with no surviving spouse, no children, no parents, no siblings, no nieces or nephews, and no other identifiable relatives within the statutory degrees, the estate goes to the Crown — to the relevant state or territory government — as bona vacantia. The state may, at its discretion, make ex gratia payments to dependants or close associates who can establish a moral claim, but there is no legal entitlement.

Family provision claims — the other layer

Even when there is a will, every Australian jurisdiction allows certain eligible persons (spouses, children, dependants) to apply to the court for further provision from the estate if they believe the will did not adequately provide for them. This is called a family provision claim (or in some states a "testator's family maintenance" claim). The court can override the will to a degree.

An intestate estate is even more vulnerable to these claims, because there is no expressed intention to compete with. Family provision claims can take 12-24 months and cost the estate tens of thousands of dollars in legal fees — fees that typically come out of the residue, reducing what every beneficiary receives.

The thirty-minute solution

For most Australians with a straightforward estate — one home, one or two super accounts, a sensible asset structure, no business interests, no overseas assets, no special-needs beneficiaries — a will can be drafted in about thirty minutes. Witnessed in another five. Stored properly in another minute. Total cost: somewhere between zero and a few hundred dollars.

If your situation is more complex — blended family, business, SMSF, overseas assets, a child with disability, an estranged relative who might contest — get a solicitor. The fee is a fraction of what your family will pay if you do not.