What happens if someone dies without a will in Australia?

Roughly half of Australian adults don't have a valid will. When someone dies without one, they are said to have died intestate and instead of their wishes deciding who gets what, a set of legislated rules takes over. For beneficiaries, an intestate estate almost always takes longer to settle and involves more paperwork than an estate with a clear will.

What does "dying intestate" mean?

Dying intestate means dying without a legally valid will. It also covers situations where a will exists but is invalid, for example, if it wasn't properly signed and witnessed, or if it doesn't deal with all the deceased's assets (partial intestacy).

When this happens, the estate is administered under the intestacy laws of the state or territory where the deceased was domiciled. Each state has its own succession legislation: the Succession Act 2006 in NSW, the Administration and Probate Act 1958 in Victoria, and equivalents elsewhere.

Who inherits when there's no will?

The rules vary by state, but the general order of entitlement is broadly consistent:

• Spouse or de facto partner: usually inherits first. If there are no children, the partner typically takes the entire estate.
• Spouse plus children: the partner usually receives a statutory legacy (a fixed dollar amount plus personal effects and a share of the residue), with the children sharing the rest. Where all children are also the partner's biological or adopted children, several states now give the entire estate to the partner.
• Children only, no partner: the estate is divided equally between the children.
• No partner or children: parents, then siblings, then more distant relatives (nieces, nephews, grandparents, aunts, uncles, cousins) inherit in that order.
• No eligible relatives at all: the estate passes to the state (this is known as bona vacantia).

These rules can produce outcomes the deceased would not have chosen. A long-term unmarried partner who wasn't in a legally-recognised de facto relationship, a stepchild who wasn't formally adopted, or a close friend caring for the deceased; none of these people inherit under intestacy rules, regardless of the deceased's actual relationships.

Who administers the estate?

Without a will, there's no named executor. Instead, an eligible person, usually the surviving partner or an adult child, applies to the Supreme Court for letters of administration. This is the intestacy equivalent of a grant of probate, and it gives the applicant legal authority to collect assets, pay debts, and distribute the estate.

Applying for letters of administration is generally slower than applying for probate. The applicant needs to prove there is no valid will (which involves searching thoroughly), identify all eligible beneficiaries under intestacy rules, and satisfy the court that they're the right person to administer the estate. If multiple people are equally entitled to apply, they need to agree otherwise the court decides.

Why intestate estates usually take longer

Compared to a well-drafted will, an intestate estate typically adds several months to the timeline. Common causes of delay include:

• Time spent searching for a will before concluding there isn't one
• Identifying and locating all beneficiaries under intestacy — particularly where the deceased has children from earlier relationships or estranged family members
• Establishing whether a de facto relationship existed, if there's any dispute
• Disputes between beneficiaries about who should administer the estate
• Additional documentation required by the Supreme Court for letters of administration

For a straightforward intestate estate — a married couple, adult children, no property in dispute — letters of administration might come through in 6 to 10 weeks. For a complex intestate estate, it can take 6 months or more just to reach the point where the administrator can start distributing assets. See our guide on estate settlement timelines for the broader picture.

What if you are a beneficiary of an intestate estate?

If you are entitled to inherit from someone who died without a will, your inheritance is legally yours the moment the administrator has authority, but you won't receive it until the estate is administered. That means paying debts, potentially selling property, and waiting for the administrator to complete the process.

Beneficiaries of intestate estates face the same cash-flow pressures as beneficiaries of any other estate: funeral costs and everyday living expenses that don't pause while the estate is being wound up.

An inheritance advance can be used to bridge this gap. Because the advance is assessed on your confirmed entitlement from the estate, not your income, it's available to beneficiaries of intestate estates, provided the administrator's entitlement is clear and letters of administration are progressing.

Unsure what a term like "administrator" or "next of kin" actually means for your situation? Our estate and probate terms glossary covers the vocabulary of intestacy in plain English.

Frequently asked questions

Waiting on letters of administration and need cash flow now? Inherita advances up to 50% of your confirmed entitlement from an intestate estate. No income check. No monthly repayments.