Dying without a will: who inherits under Australia's intestacy rules

What does intestate mean?

Dying intestate means dying without a valid will. It also covers a will that has been revoked, which happens automatically in every state when you marry unless the will was made in contemplation of the marriage. See our guide to codicils and updating your will.

Partial intestacy is when you have a will but it doesn't deal with everything you own, for example because a gift fails and there's no backup. The part your will doesn't cover is shared under the intestacy rules, and the rest goes as your will says.

Who inherits if you die without a will?

Every state and territory has its own intestacy law, but the order of who inherits is broadly the same:

1. Your partner and children. How they share depends on your state (see below). If a child has died before you, their children generally take their place.
2. Your parents, if you have no partner or children (in WA and the NT they can share with a partner).
3. Your brothers and sisters. If one has died, their children take their share.
4. Your grandparents.
5. Your aunts and uncles. If one has died, their children (your first cousins) take their share.
6. The state or territory, if none of these relatives survive you.

A few rules apply everywhere. Adopted children inherit like any other child. Half-brothers and half-sisters count the same as full siblings. Stepchildren and in-laws don't inherit at all, however close you were. In NSW, Victoria, Queensland, SA and Tasmania, a relative must outlive you by 30 days to inherit.

There are some differences at the edges. In WA, brothers and sisters can share with your parents in a larger estate. Queensland and WA stop the sibling line at nieces and nephews. The ACT and NT let the descendants of an aunt or uncle who has died inherit to any degree, not just first cousins, and SA adds the children of first cousins before the estate goes to the state.

How much does your partner get?

This is where the states differ most. Two questions matter: whether you have children, and whether all of them are also your partner's children.

• Partner and no children. Your partner takes everything in most states. In WA and the NT, if a parent, brother, sister, niece or nephew is alive, your partner gets a fixed amount plus half of the rest, and those relatives share the other half.
• Partner and children who are all your partner's. In NSW, Victoria and Tasmania your partner takes everything. In Queensland, WA, SA, the ACT and the NT, your partner gets a fixed amount and a share of the rest, and your children share the remainder.
• Partner and children from another relationship. Your partner generally gets your personal belongings, a fixed amount called the statutory legacy, and a share of what's left: half in NSW, Victoria, Tasmania and SA, or half if there's one child and a third if there are more in Queensland, WA, the ACT and the NT. Your children share the rest.

In most states, if your estate is worth less than the fixed amount, your partner takes it all. So in a smaller estate your children from an earlier relationship may receive nothing, while in a larger one your partner may receive much less than you'd expect.

Intestacy rules in each state

Do de facto partners inherit if there's no will?

Yes, if the relationship meets your state's test. A de facto partner who qualifies is treated the same as a husband or wife. The tests differ:

A partner who doesn't meet the test can't inherit under the intestacy rules, though they may be able to make a family provision claim.

What if there's more than one partner?

It happens more than you'd think, usually when someone separated but never divorced and then started a new relationship. Each state has rules for it. In NSW, Victoria, Queensland and Tasmania the partners share by written agreement, by court order, or equally. In SA they share equally unless a court orders otherwise. In WA and the ACT a de facto partner of 5 years or more can take the whole partner's share, and in the NT either the spouse or the de facto partner takes it, depending on the circumstances.

If this could apply to you, a will is the only way to decide it yourself.

Who manages the estate without a will?

With no will there's no executor. Instead, someone applies to the Supreme Court for letters of administration, which give them authority to collect your assets, pay your debts and share out what's left under the intestacy rules. That person is called the administrator.

The applicant is usually your partner or closest relative who is entitled to share in the estate. In NSW, the Supreme Court says generally only someone entitled to all or part of the estate can apply, and the most common applicant is the surviving spouse or de facto partner. In Victoria the applicant must be over 18.

The Public Trustee in each state (NSW Trustee & Guardian in NSW, State Trustees in Victoria) can also act as administrator, usually when the family agrees or nobody else is able to. Compared with a will, it adds a step: someone has to show the court who your relatives are and that they're entitled before anything can be shared.

What can't the intestacy rules do?

The rules are a formula. They can't know your family, and some things only a will can do:

• Name guardians for children under 18. See guardians for children.
• Leave anything to friends, stepchildren, carers or charities. None of them inherit under intestacy.
• Choose who's in charge. You can't pick your administrator the way you choose an executor.
• Protect an inheritance, for example with a testamentary trust for young children or a special disability trust.
• Leave someone out, or give one person more than another, for reasons only you know.
• Deal with your super. Super isn't automatically part of your estate. Without a valid binding nomination, your fund's trustee decides who gets it. See binding death benefit nominations.

Someone who's left out or gets too little under the intestacy rules may be able to make a family provision claim, just as they could against a will. See contesting a will.

How do you avoid intestacy?

Make a valid will and keep it current. It needs to be in writing, signed by you in front of two witnesses who are present at the same time, and signed by them too. See how to make a will and how much a will costs.

Willies wills are available in all eight states and territories. You answer plain-English questions in about 10 minutes, a real person checks your will within 2 business days, and it arrives with step-by-step signing instructions for your state. An Essential Will is A$149, and the Complete Will (A$399) covers blended families, trusts, business interests and overseas assets.