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      What happens when someone dies without a will?

      Quick answer

      A person who dies intestate (that is, without leaving a valid will) has their property distributed according to state law. These laws are general and often fail to take into account individual circumstances. You may need to contest the will to get your fair inheritance.

      Below, we breakdown the intestacy laws in each state.

      In depth answer

      When someone passes away without leaving a will, this is known as dying ‘intestate’. While the most common scenario relates to a person without a will, intestacy can also occur if:

      • The will does not deal with all the deceased’s assets, or
      • The will wasn’t legally signed or witnessed, or
      • The deceased did not have the mental competence/ ability to make a will

      Once a person is found to have died intestate, their property is distributed according to state legislation.

      In all states, an application must first be made to the Supreme Court for ‘Letters of Administration’. This Court document gives a person authority to administer the deceased’s estate. Usually this will be the person with the greatest entitlement to the estate.

      Different laws apply in different states. Please choose your state below so we can show you the most relevant content.

      In NSW, the current spouse will inherit the deceased’s entire estate. The one exception is if the deceased has children from previous relationships. In that instance, the current spouse is entitled to:

      • All of the personal effects, and
      • Approximately $490,000 (adjusted regularly to the current Consumer Price Index), and
      • Half of whatever is left of the estate.

      The remaining half of the estate is shared equally between all children. If a child has passed away, any grandchildren will inherit their share.

      What happens if there is no spouse or children?

      If there is no spouse or children, the estate will pass to the following groups in order of entitlement:

      1. Parents
      2. Siblings
      3. Nieces and nephews
      4. Grandparents
      5. Aunts and uncles
      6. First cousins
      7. NSW Government

      In Victoria, the current spouse is usually entitled to the whole of the deceased’s estate. As of 2018, any children of that relationship will not inherit their own portion of the estate.

      If the deceased has children from previous relationships, the current spouse is only entitled to:

      • All of the personal effects, and
      • Approximately $451,909, and
      • Half of whatever is left of the estate.

      The remaining half of the estate is shared equally between all children. If any children have died, their own children will inherit.

      What happens if there is no spouse or children?

      If there is no spouse or children, the estate will pass to the following relatives in order of entitlement:

      1. Parents
      2. Siblings
      3. Nieces and nephews
      4. Grandparents
      5. Aunts and uncles
      6. Cousins

      In Victoria, the government inherits an estate if there are no living relatives. The government may pass the estate to any non-relative financial dependant of the deceased.

      In Queensland, the current spouse will inherit the whole of the estate if the deceased had no children. If there are children, the current spouse is entitled to:

      • All of the personal effects (also known as ‘household chattels’), and
      • $150,000, and
      • 1/3 of the remaining estate.

      The other 2/3 is distributed among the deceased’s children.

      What happens if there is no spouse?

      The deceased’s surviving children will inherit an equal share of their estate. If any of the children have passed away, their own children will inherit their share.

      What happens if there is no spouse or children?

      The estate will be distributed in the following order:

      1. Parents
      2. Siblings
      3. Nieces and nephews
      4. Grandparents
      5. Uncles or aunts
      6. First cousins
      7. Queensland government

      In South Australia, the current spouse will inherit the entire estate if the deceased had no children. Where there are children, inheritance depends on the size of the estate. For estates less than $100,000, the spouse still inherits the entirety. For estates totalling more than $100,000, the spouse will receive:

      • All of the personal effects, and
      • $100,000, and
      • Half of the remaining estate, and
      • The right to purchase the estate property.

      The children will receive an equal share of the remainder.

      What happens if there is no spouse?

      The children will receive an equal share of the entire estate. If any children have passed away, their portion of the estate passes to their own children.

      What happens if there is no spouse or children?

      In the absence of a spouse or children, the following groups will inherit:

      1. Parents
      2. Siblings
      3. Nieces and nephews
      4. Grandparents
      5. Aunts and uncles
      6. First cousins
      7. South Australian government

      In Western Australia, intestacy laws changed in 2022. The exact rules depend on whether or not the deceased had a spouse at their passing.

      What happens if the deceased had a current spouse?

      While the surviving spouse is entitled to a substantial share of the estate, most surviving relatives are also entitled to a portion of it.

      The only situation where a spouse inherits the entire estate is if the deceased leaves no surviving parents, siblings or children of those siblings.

      What happens if the deceased has children?

      If the deceased has any surviving children, the spouse will inherit:

      • All of the personal effects, and
      • $472,000, and
      • 1/3 of what is left

      The children will then receive an equal share of the remaining 2/3. If there is only one child, the spouse and child will receive half each.

      What happens if the deceased has no children?

      If the deceased left no children, the spouse’s inheritance depends on whether there are any surviving parents, siblings, or nieces and nephews (if the siblings have passed away).

      If surviving parents, siblings, and nieces or nephews• Spouse entitled to all personal effects, $702,000 and half of remainder
      • Parents entitled to next $56,500 and half of balance remaining
      • Siblings and nieces or nephews then entitled to other half of remaining
      If only surviving parents • Spouse entitled to all personal effects, $702,000, and half of remainder
      • Parents entitled to other half
      If only siblings and nieces or nephews• Spouse entitled to all personal effects, $702,000, and half of remainder
      • Siblings entitled to other half

      If the deceased did not have a current spouse

      If surviving parents, siblings and nieces or nephews• Parents entitled to $56,500 and half of remaining estate
      • Siblings and nieces or nephews then entitled to other half
      If only surviving parentsParents entitled to entire estate
      If only surviving siblings and nieces or nephewsSiblings and nieces or nephews entitled to entire estate
      If no surviving parents, siblings, and nieces or nephewsEntitlement will follow this order:
      • Grandparents
      • Aunts and uncles
      • First cousins
      • The WA government

      In Tasmania, the current spouse is entitled to the entire estate provided the deceased had no children. If there are children, the spouse will receive:

      • $50,000, and
      • 1/3 of the remaining estate.

      The children will then receive equal parts of the remaining 2/3.

      What happens if there is no spouse?

      The surviving children will receive an equal share of the entire estate. If any children are deceased, their own children will inherit their share.

      What happens if there is no spouse or children?

      Entitlement to the estate will pass to the following, in order:

      • Parents
      • Siblings
      • Grandparents
      • Aunts and uncles
      • Other next of kin
      • Tasmanian government

      To sum up

      If your loved one has died intestate, it is vital to get a will dispute lawyer involved. As you can see, state legislation is very general and does not consider each individual situation. This creates a risk of unfair asset distribution. To ensure you receive the inheritance you deserve, speak to one of our specialised estate lawyers today.

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