Dying without a will in Australia: how assets are distributed under intestacy law
What is intestacy
When a person dies without a valid will in Australia, they are said to have died intestate. Their estate is then distributed according to the intestacy laws of their state or territory — not according to their wishes, family customs, or verbal instructions given while alive.
The order of priority under intestacy
Each state has its own legislation, but the general priority order is:
1. Spouse/partner and children If there is a spouse (or de facto partner) and children, the estate is typically split: the spouse receives a fixed entitlement plus a share, and children share the remainder.
2. Spouse/partner only (no children) The spouse typically receives the entire estate.
3. Children only (no spouse) The estate is divided equally among the children.
4. No spouse or children The estate passes to parents, then siblings, then grandparents, then aunts and uncles — in a fixed statutory order.
5. No relatives at all The estate passes to the state government (bona vacantia).
Who is most at risk from intestacy
- Unmarried (de facto) partners: Many states protect de facto partners under intestacy law, but they must prove the relationship — a costly and distressing process at an already difficult time.
- Stepchildren: May not be automatically entitled, depending on how the relationship is legally defined.
- Anyone wanting to leave something to friends or charities: This is simply not possible under intestacy — only relatives in the statutory order receive anything.
- Business owners: Dying intestate can disrupt business continuity.
Who administers the estate when there is no will
Without a will there is no executor named to manage the estate. A court (usually the Probate registry) must appoint an administrator — typically the closest next-of-kin. This process is slower, more expensive and more emotionally draining than administering an estate with a will.
Assets that bypass the estate entirely
These assets transfer automatically to a named beneficiary and are not affected by a will or intestacy:
- Superannuation: Paid according to the Binding Death Benefit Nomination (BDBN) you filed with your fund. If no BDBN exists, the trustee decides — usually a spouse or dependant.
- Life insurance: Paid according to the policy’s named beneficiary.
- Joint tenancy property: Automatically passes to the surviving owner.
How much does a will cost
A straightforward will through a solicitor costs approximately $300–$600. Adding an Enduring Power of Attorney brings the total to roughly $600–$1,200. State Trustee Corporations offer a similar service. This is a modest cost compared to the legal bills and family stress that intestacy can create.