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What happens if you die without a Will? Intestacy provisions and how they apply

Monday May 16, 2022

What happens if you die without a Will?  Intestacy provisions and how they apply

There is no legal requirement to make a Will.   Each State has rules in place in the event you pass away without making a Will – these are called the laws of intestacy. 


When an individual dies without a Will they are considered to have died ‘intestate’ and their estate is dealt with under the laws of intestacy of the relevant jurisdiction in which their assets were situated.

To outline, the intestacy provisions in the Administration and Probate Act 1958 set out a ‘default’ order in which family members will inherit your estate if you pass away without a Will.   If there are no family members, then under the intestacy rules, an estate will be disposed of in the following order depending on the intestate's family circumstances:

Intestate’s family

Who benefits

Partner (no children and no issue)

Partner to receive entire estate.

Partner and children of the relationship

Partner to receive entire estate.

Partner with children from another relationship

If estate is less than ‘statutory legacy’ (currently $451,909) partner to receive the whole of the estate.

If estate more than statutory legacy, partner is to receive this amount, interest on statutory legacy, chattels plus ½ of the residuary estate.

The children of the intestate share in the remaining ½ of the residuary estate.

More than one partner (and no children)

Partners share in the estate by agreement or court order.

More than one partner and children from one or more of those partners

As above.

More than one partner and a child that is not a child of the partners

Partners share chattels (either by agreement, court order or other means).

If estate is less than statutory legacy, partners share in estate (either by agreement, court order or other means).

If estate more than statutory legacy, partners also receive above plus interest on statutory legacy and ½ of the residuary estate (divided according to the agreed proportions).

The children share in the remaining ½ of the residuary estate.

Children (no partner)

Shared equally between children (if more than one).

If a child predeceases the intestate, then to their respective children (grandchildren of intestate).

Parents (no children, no partner)

Shared equally between parents (if more than one).

Siblings (no children, no partner, no parents)

Shared equally between siblings (if more than one).

If a sibling predeceases the intestate, then to their respective children (nieces/nephews of intestate).

Grandparents (no children, no partner, no parents, no siblings)

Shared equally between grandparents (if more than one).

Aunts and Uncles (no children, no partner, no parents, no siblings, no grandparents)

Shared equally between aunts and uncles (if more than one).

If an aunt or uncle predeceases the intestate, then to their respective children (cousins of the intestate).

If there is no relative or bloodline to benefit

The Crown.

Although these rules might accord with the deceased’s person’s wishes in some cases – for example, where a husband and wife would simply wish to benefit their surviving spouse in the event of their death - the waters become murky in more complex scenarios, for example, where there are multiple partners or children from multiple relationships.  

If there are no relatives, the intestacy laws do not allow friends or charities to benefit – rather, the estate is then the property of the Crown!

The laws of intestacy should never be relied upon.

There are substantial benefits from both making and updating your Will regardless of your familial situation, including:

  • avoiding unnecessary (and costly) arguments and uncertainty about the disposition of your estate, particularly when there are multiple partners or children from prior relationships;
  • similarly, avoiding arguments and uncertainty about who is entitled to administer your estate;
  • gifting your estate to friends or remote family members, or charities who would not benefit on intestacy;
  • avoiding a gift to a family member who would stand to benefit on intestacy; and
  • making direct provision for children or grandchildren where the intestacy provisions would not.

In summary, our advice will always be to make a Will while you still have the capacity to do so.  Leaving your hard-earned estate up for grabs is fraught with the risk of people benefitting from your estate against your wishes and in rare but not impossible circumstances your property passing to the Crown.

If you would like to find out more about the laws of intestacy or making a Will please contact our experienced Wills and Estates team on 03 9550 4600.