Written by: Julie Baqleh Writing a will and clearly setting out how you want your estate managed after your death is one of the most important steps you can take to protect your loved ones. Yet despite its significance, many Australians still pass away without a valid will, a situation known as dying intestate.
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In this February 2026 guide, we’ll break down the rules of intestacy and go through everything you need in this difficult time. We’ll also cover how the rules of intestacy vary state by state, how to navigate the legal processes of intestacy and how you can contest an intestate estate.
What is intestacy?
When a person dies intestate, that is, without a valid will, their estate is distributed in accordance with the current intestacy rules.
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These are statutory rules that determine:
- Who is entitled to inherit
- Which assets form part of the estate
- Who may be eligible to challenge the distribution.
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Intestacy rules apply when there is no valid will in place. While this most commonly occurs because no will was ever made, there are several circumstances in which a will may be deemed invalid.
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A will may be invalid if the testator (the person making the will):
- Lacked testamentary capacity
- Was subjected to undue influence
- Did not understand the nature and effect of the will
- Did not know or approve of its contents.
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A will may also fail if it has been revoked and not replaced. For example, marriage generally revokes an existing will unless the will was made in contemplation of that marriage.
Key consideration
Intestacy laws in Australia are used to determine who inherits when someone dies without a valid will. These laws set out a clear order of priority for eligible relatives. Before any distribution can occur, however, the estate must first be used to pay all outstanding debts, funeral expenses, and any applicable taxes. Only the remaining balance is available for beneficiaries.
What is the hierarchy of inheritance?
Laws of intestacy vary from state to state in Australia, but they all employ a hierarchy of inheritance, with closer relatives taking precedence over more distant ones.
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In general, the estate is distributed in the following order of priority:
- Spouse or de facto partner
- Children (including adopted children and, in most states, stepchildren in certain circumstances)
- Parents
- Siblings
- Grandparents
- Aunts, uncles, and cousins
- The state government (only if no relatives can be found).
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If there is no one in one category, the estate passes to the next category until an eligible beneficiary is found.
Key takeaway
The hierarchy of inheritance applies only when there is no valid will. While the exact rules vary between states, the estate generally passes to the closest surviving relatives first, with more distant family members inheriting only if no closer relatives are eligible.
What is a statutory legacy?
Where a spouse or de facto partner survives the deceased, they are given priority under intestacy laws. However, this does not always mean they inherit the entire estate.
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In some circumstances—particularly where the deceased leaves children from a previous relationship—the surviving spouse is entitled to what is known as a statutory legacy (also called a spousal legacy).
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A statutory legacy is a prescribed lump sum set by legislation in each state or territory. While the exact amount varies across Australia, the general approach is similar:
- The spouse receives the deceased’s personal effects (and often household chattels)
- The spouse is paid the statutory legacy from the estate first
- The remainder of the estate is then divided according to the intestacy rules of that jurisdiction, which may include a share for the deceased’s children.
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If there is no surviving spouse, the estate passes to the next category in the hierarchy.
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What do I do if my family member died without a will?
When a person dies with a valid will, they usually name an executor to organise and oversee the distribution of the testator’s estate. When someone dies without a valid will, no one has automatic legal authority to distribute the estate.
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Instead of an executor, the courts can grant authority to an administrator to manage the estate according to intestacy rules.
Step 1: Apply for Letters of Administration
The first step is to apply to the Supreme Court for a Grant of Letters of Administration, a document that formally gives the applicant the rights of an administrator.
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Like the inheritance itself, administration prioritises closer relatives over more distant ones, provided they are suitable to serve. Generally, those with the strongest claim under the hierarchy of inheritance are also the most appropriate and likely candidates to be appointed as the estate’s administrator.
Step 2: Administration of the estate
Once an administrator has been appointed, they can begin managing and distributing the intestate estate in accordance with the law.
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If you are not the administrator, your responsibilities are relatively limited. You may need to:
- Prove your identity as the next-of-kin
- Notify the administrator of any relevant information, such as debts, liabilities, and assets of the deceased
- Contact any superannuation or life insurance provider directly if you are the beneficiary, as these are generally not handled through estate administration.
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If you are appointed as the administrator, it will be your responsibility to distribute the estate according to intestacy rules. Duties are similar to those of an executor and include:
- identifying, collecting and recording all of the estates asssets.
- paying any outstanding debts, taxes (including filing tax returns for the estate) and the funeral expenses.
- distributing the assets according to intestacy rules.
Administrators can be held personally liable for any mistakes or mismanagement of the estate. A will dispute lawyer can help you navigate the process.
Step 3: Wait for distribution
The administration of intestate estates usually takes nine to 18 months to finalise. In more complex estates, where there are multiple beneficiaries, disputes, or complications, the process can take several years. Estates with valid wills are often resolved more quickly.
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Can you contest an intestate estate?
Contesting an intestate estate is similar to contesting a will. If you believe the statutory distribution does not make adequate provision for your proper maintenance and support, you may be able to bring a family provision claim.
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The process and eligibility rules vary slightly depending on the state or territory (for example, NSW, Victoria or Queensland), but the core principles are broadly consistent across Australia.
Family provision claims
To succeed, an applicant must show:
- The intestate distribution does not adequately provide for their proper maintenance, education or advancement in life
- The deceased had a moral obligation to make provision for them.
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The court will consider factors such as the nature of the relationship, financial need, contributions made, and the size of the estate.
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Your claim may be unsuccessful if:
- You are not an eligible person under the legislation
- You cannot demonstrate financial need
- The estate is too small to justify further provision
- The court finds no moral duty existed in the circumstances.
Family provision claims must be made within strict time limits. Any claim made outside these time limits will be automatically rejected.
Exceptions to the hierarchy of inheritance for intestate
Even where a person does not qualify as a surviving spouse for the purposes of intestacy—and therefore has no automatic entitlement to a statutory legacy—the court may still intervene when challenging intestacy rules.
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In Robinson v Glennon [2025] NSWSC 770, the Supreme Court of NSW awarded a $315,000 intestate estate to a former partner. The couple had been in a nine-year on-again, off-again relationship and were separated for four months before death. The court looked beyond their formal relationship status. It focused instead on their history of mutual reliance and the deceased’s moral duty to provide.
Key takeaway
Intestacy rules determine who inherits by default, but family provision laws can override those rules where fairness requires it.
