Around half of Australian adults don’t have a valid will. In New South Wales, the state’s own trustee estimates the figure is closer to 60%. It is one of those tasks that is easy to put off—until it suddenly can’t be done at all.
If you die without a valid will, you die “intestate.” That doesn’t mean your assets vanish or that “the government takes everything” (a common myth). What it means is that you have handed the decision about who inherits your life’s work to a fixed legal formula—one that takes no account of your relationships, your intentions, or the people who actually depend on you. This guide explains exactly what happens when there’s no will, who inherits, who misses out, and why the formula so often produces an outcome the deceased would never have chosen.
What “Intestate” Actually Means
When there is no valid will, your estate is distributed according to the rules of intestacy set out in your state or territory’s succession legislation. Each state has its own formula, but they share the same basic idea: assets pass down a fixed order of relatives, in fixed shares, regardless of your wishes or your family’s particular circumstances.
Before anyone can distribute the estate, a close relative usually has to apply to the Supreme Court for a grant of letters of administration—the intestacy equivalent of being appointed executor. Until that grant is made, your bank accounts may be frozen and your assets cannot be dealt with. This adds delay, cost, and stress at the worst possible time.
How ezylegal helps: A will avoids all of this. It lets you choose who administers your estate, who inherits, and on what terms—so your family deals with grief, not paperwork and court applications. Our intake assistant, Rachel Z, can start your will in minutes, any time of day. Start a free chat now.
Who Inherits Under the Intestacy Formula
The exact shares differ by state, but the order is broadly consistent across Australia. Assets pass to the first category that applies:
- Spouse or de facto partner (no children): usually the whole estate.
- Spouse/partner and children: the estate is split—the partner typically receives a statutory legacy and the household contents, plus a share, with the remainder divided among the children. The exact split depends on the state and, critically, on whether the children are also the partner’s children.
- Children, no surviving partner: divided equally among the children (with a deceased child’s share usually passing to their own children).
- No partner or children: the estate moves down the line—parents, then siblings, then nieces and nephews, then grandparents, aunts and uncles, then cousins.
- No eligible relatives at all: the estate can ultimately pass to the state government (a process called bona vacantia).
Notice what this list does not include: friends, carers, partners you never formally lived with long enough to qualify, charities, and—in many situations—stepchildren. None of them inherit under intestacy, no matter how close they were to you.
The Myths That Cost Families the Most
Myth 1: “Everything automatically goes to my partner”
This is the single most damaging misconception. If you have a partner and children, your partner often does not receive everything. In a blended family—where the children are from a previous relationship—the estate may be split between your current partner and your children in a way that leaves your partner without enough to keep the family home, while your children receive a share they may not need yet. Intestacy is blind to these dynamics. A will is not.
Myth 2: “We’re de facto, so it’s the same as being married”
For intestacy, a de facto partner is generally recognised—if the relationship meets the legal definition (usually living together on a genuine domestic basis, often for at least two years, or where there’s a child). The problem is proof. After your death, your partner may have to prove the relationship existed to a court’s satisfaction, sometimes against the objections of other relatives. A will removes that uncertainty entirely.
Myth 3: “My will sorts out my kids’ guardianship”
Intestacy decides who gets your money and property—but it says nothing about who raises your children. Only a will can nominate a guardian for your minor children. Die without one, and that profoundly important decision may be left to a court.
How ezylegal helps: For parents, this is the part that matters most. We make sure your will appoints guardians for your children and sets up sensible trust arrangements for any inheritance until they’re old enough to manage it. Learn about our wills and estates service.
Who Misses Out
Because intestacy follows bloodlines, it routinely excludes exactly the people a modern Australian might most want to provide for:
- Stepchildren you raised but never formally adopted.
- Unmarried partners who don’t meet the de facto threshold, or can’t prove it.
- Close friends or carers who supported you.
- Charities you cared about.
- Specific people you wanted to receive specific things—your tools, your jewellery, a family heirloom.
Intestacy cannot make a gift to any of them. It also can’t disinherit a relative you were estranged from. The formula simply runs, regardless of what you would have wanted.
The Hidden Costs of Dying Without a Will
Intestacy isn’t just emotionally harder—it’s often more expensive and slower:
- Court applications for letters of administration take time and cost money.
- Frozen assets can leave a surviving partner without access to funds for weeks or months.
- Family conflict is far more likely when there’s no clear statement of your wishes—and disputes over an intestate estate can consume a large slice of it in legal fees.
- Tax and structuring opportunities that a will could have captured are simply lost.
The irony is that avoiding the modest cost of a will frequently leaves your family with a much larger bill.
How ezylegal helps: A properly drafted will is one of the highest-value, lowest-cost things you can do for the people you love. We do it at a transparent fixed fee, with the document reviewed by a qualified Australian lawyer for your state. See our pricing.
The fix takes about 15 minutes. The simplest way to avoid the intestacy formula is to make a will—today. Our sister site ezyWill lets you create a legally valid, state-specific will online from $99/year. If your estate is more complex—a blended family, a business, or someone likely to contest it—ezylegal’s lawyers will make sure it is done right.
What If Someone’s Been Left Out—Or There’s No Will?
If a loved one has already died without a will, all is not lost—but the path is harder. The eligible relatives need to sort out who applies for administration, and the estate is distributed by the statutory formula. People who were left out by intestacy (such as a dependent partner or stepchild) may, in some cases, be able to bring a family provision claim for a share of the estate. These claims are stressful, time-limited, and far from guaranteed.
The cleaner answer, by a wide margin, is to make a will while you can.
How ezylegal helps: Whether you need to make a will or you’re dealing with the estate of someone who died without one, our lawyers can guide you. We handle the Supreme Court paperwork and, where appropriate, advise on family provision claims—at fixed fees, not hourly rates. Start a free chat now.
Frequently Asked Questions
What does “intestate” mean?
It means dying without a valid will. Your estate is then distributed according to your state or territory’s fixed statutory formula, rather than your personal wishes.
Does my de facto partner inherit if I have no will?
Generally yes, provided the relationship meets the legal definition of a de facto relationship (usually living together on a genuine domestic basis, often for at least two years or where there’s a child). The difficulty is that your partner may have to prove the relationship to a court—something a will makes unnecessary.
If I die without a will, does the government take everything?
Only as a last resort. The government (via bona vacantia) inherits only if no eligible relative can be found anywhere in the statutory order. In most cases the estate passes to family—just not necessarily the family members you would have chosen, or in the shares you would have wanted.
Can stepchildren inherit under intestacy?
In most cases, no. Intestacy generally follows biological and adopted relationships, so stepchildren you never formally adopted usually receive nothing—even if you raised them. To provide for a stepchild, you need a will.
Who looks after my children if I die without a will?
Intestacy doesn’t appoint guardians—only a will can. Without one, decisions about who raises your minor children may be left to the courts, which is exactly the uncertainty most parents want to avoid.
How long does it take to sort out an intestate estate?
Longer than an estate with a will. Someone must first apply to the Supreme Court for letters of administration before the estate can be dealt with, which adds weeks or months of delay on top of the ordinary administration process.
I have a will from years ago—is that enough?
Maybe not. Marriage, divorce, new children, blended families, and new assets can all affect a will, and in some cases marriage revokes an earlier will. An out-of-date will can be almost as risky as no will. It’s worth reviewing it after any major life change.
Take Back the Decision
Dying without a will doesn’t leave your wishes to chance—it removes them from the equation entirely. A will puts you back in control of who inherits, who raises your children, and who administers your estate.
- Start a Chat: Tell Rachel Z about your family and assets—it takes a few minutes.
- Lawyer Review: A qualified Australian lawyer prepares your will for your state.
- Sign With Confidence: We guide you through correct signing and witnessing so your will is valid.
No billable hours. No government formula. No leaving it to chance.
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