Key Takeaways
- Dying without a valid Will in NSW is known as intestacy.
- The law determines how your estate is distributed, not your personal wishes.
- Spouses, children and close relatives may inherit, depending on your circumstances.
- Unmarried partners may still have rights, but disputes can arise.
- Without a Will, the process is often slower, more complex and more expensive.
What Does It Mean to Die Intestate?
If you pass away without a legally valid Will in New South Wales, your estate is distributed according to the Succession Act 2006 (NSW).
This is known as dying intestate.
Instead of your assets going to the people you choose, the law sets out a strict formula for who inherits your estate. This may not reflect your personal wishes or family circumstances.
Who Inherits Your Estate?
The distribution of your estate depends on your surviving family members.
If You Have a Spouse
If you leave behind a spouse (including a de facto partner), they will usually inherit most or all of your estate.
- If there are no children, your spouse receives the entire estate.
- If all children are from that relationship, your spouse typically receives the entire estate.
However, things become more complex if there are children from previous relationships.
If You Have Children from Another Relationship
If you have a spouse and children from a different relationship:
- Your spouse receives a statutory legacy (a set amount defined by law)
- Your spouse may also receive personal belongings and a share of the remaining estate
- Your spouse and children share the balance
This can create tension, particularly in blended families where expectations differ.
If You Have No Spouse
If you do not have a spouse:
- Your children inherit your estate in equal shares
- If a child has already passed away, their share may pass to their children
If You Have No Immediate Family
If there is no spouse or children, your estate may pass to:
- Parents
- Siblings
- Extended relatives such as nieces, nephews or cousins
If no eligible relatives can be found, your estate may ultimately pass to the NSW Government.
What Happens to Your Assets?
Your estate can include:
- Property and real estate
- Bank accounts and investments
- Superannuation (in some cases)
- Personal belongings
Without a Will, there is no opportunity to:
- Leave specific gifts to certain people
- Nominate guardians for children
- Make charitable donations
- Structure your estate for tax or asset protection
This can significantly affect how your wealth is distributed.
Who Administers Your Estate?
When there is no Will, someone must apply to the court for Letters of Administration.
This person, known as the administrator, is responsible for:
- Collecting assets
- Paying debts
- Distributing the estate according to the law
This process is generally more time-consuming and complex than administering an estate with a valid Will.
Risks of Dying Without a Will
Dying intestate can create a range of challenges:
- Family disputes over who should inherit
- Delays in accessing funds or finalising the estate
- Increased legal costs due to court applications
- Unintended outcomes, especially in blended families
For example, a long-term partner may not automatically inherit everything if the legal criteria are not clearly met.
Why Having a Will Matters
A valid Will gives you control over:
- Who receives your assets
- How your estate is managed
- Who will act as executor
- Guardianship arrangements for children
It also allows for more sophisticated planning, such as trusts or tax-effective distributions.
You may also benefit from reviewing your broader estate plan, including Power of Attorney arrangements:
https://www.berrymanpartners.com.au/blog/power-of-attorney-explained-who-needs-one-and-why/
How Berryman Partners Can Help
At Berryman Partners, we help individuals and families across Newcastle, Lake Macquarie and the Hunter region:
- Prepare legally valid Wills tailored to your circumstances
- Ensure your estate is distributed according to your wishes
- Minimise the risk of disputes or challenges
- Assist with estate administration if a loved one has passed without a Will
Our team provides clear, practical advice to help you plan with confidence.
Contact Berryman Partners today to ensure your wishes are protected and your family is supported.
This blog was written by Senior Associate,
Liz McIntyre
Liz practises in the areas of Family Law, Wills & Estate Planning,
Deceased Estates, Wills disputes and Conveyancing
