What happens if you die without a will in Australia?

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Short answer

If you die without a valid will, you die “intestate” and the intestacy laws of your state or territory decide who inherits. Usually your spouse or de facto partner and children inherit first, then parents, siblings and more distant relatives. If there are no eligible relatives, the estate goes to the state.

Key facts

  • Each state and territory has its own intestacy rules, and the details differ.
  • If you have a partner and children from an earlier relationship, your partner may not receive everything.
  • Friends, step-children who were not adopted, and charities usually receive nothing under intestacy.
  • Someone has to apply to the Supreme Court for letters of administration before they can deal with most assets.
  • Superannuation and jointly owned property usually pass outside intestacy, just as they would outside a will.

Who inherits if there is no will?

Intestacy laws follow a fixed order. The exact shares depend on your state or territory and on the size of the estate, but the order is broadly similar everywhere:

  1. Your spouse or de facto partner, and your children.
  2. If there is no partner or children: your parents.
  3. Then your brothers and sisters (and their children if a sibling has died).
  4. Then grandparents, then aunts and uncles, then cousins.
  5. If there are no eligible relatives, the estate goes to the state or territory government.

Does my partner get everything?

Often, but not always. In several states, if all your children are also your partner’s children, your partner receives the whole estate. If you have children from another relationship, your partner usually receives your personal belongings, a set amount and a share of the rest, and your children share the remainder. De facto partners are generally treated like married spouses, but they may first need to prove the relationship, and some states require it to have lasted a certain time.

Who manages the estate without a will?

Because there is no executor, a close relative, usually the partner or an adult child, applies to the Supreme Court of the state for letters of administration. The administrator then collects the assets, pays debts and tax, and distributes what is left under the intestacy rules. This usually takes longer and costs more than probate of a will.

Can anyone challenge an intestate estate?

Yes. People who were left without adequate provision, such as a child, a former partner or someone who was financially dependent on the person who died, may be able to make a family provision claim, even when there is no will. Time limits are strict and differ between states.

What can I do now?

Common questions

What is the difference between probate and letters of administration?

Probate confirms the executor named in a valid will. Letters of administration appoint an administrator when there is no will, or when the will names no executor who can act. Both are granted by the Supreme Court of the state or territory.

Do step-children inherit if there is no will?

Usually not, unless they were legally adopted. Step-children may be able to make a family provision claim in some circumstances.

What happens to my super if I die without a will?

Your super fund pays it according to its rules and any valid nomination you made. Without a valid binding nomination, the trustee usually decides between your dependants and your estate.

Does the government take everything if I have no will?

Only if you have no eligible relatives at all. That is rare, but it happens. In every other case, the estate goes to relatives in the order set by law.

Sources and official help

These guides are general information, not legal or financial advice. Laws differ between states and territories and change over time. Speak to a solicitor or your state or territory public trustee about your situation.