Intestacy

When a family member dies without a valid will in NSW, the law, not the family, decides who inherits. The rules are set out in the Succession Act 2006 (NSW) and are known as the intestacy rules. They follow a strict order of relatives, starting with a spouse or de facto partner.

Below we explain who is entitled to the estate, how the statutory legacy works in blended families, what to do first, and what you can do if you have been left out.

A person who dies without a valid will dies “intestate”. The same rules apply to any part of an estate that a will does not deal with. This is called a partial intestacy.

Funeral costs, administration expenses and debts are paid first. What remains goes to eligible relatives in the order the law sets out. Wishes the deceased may have mentioned have no legal effect.

Some assets may not form part of the estate. Property held as joint tenants generally passes automatically to the surviving owner, and superannuation and life insurance generally do not form part of the estate. Our article Is super part of my estate? explains why.

A spouse or de facto partner, with no children from another relationship

If the deceased leaves a spouse or de facto partner and no children, or only children of that relationship, the spouse or partner takes the whole estate. The children do not inherit directly.

Blended families and the statutory legacy

The position changes if the deceased had a child from another relationship. The surviving spouse or partner is then entitled to:

• the deceased’s personal effects
• a fixed sum called the statutory legacy
• half of whatever remains.

The other half is shared equally among the deceased’s children. If the estate is worth less than the statutory legacy, the spouse or partner may receive everything and the children nothing.

The statutory legacy started at $350,000 and is adjusted every quarter for inflation, so the amount depends on the date of death. For deaths on or after 29 October 2026, the statutory legacy is $623,050.50. Interest is added if it is not paid in full within one year of the death. Our statutory legacy page has a calculator and past figures.

If you are the surviving spouse, you may also be able to elect to take estate property, such as the family home, as part of your entitlement. Conditions and time limits apply.

More than one spouse

If the deceased leaves more than one spouse, for example a husband and a separate de facto partner, they share the spouse’s entitlement. The shares can be set by written agreement, by court order or, in some cases, equally.

If there is no spouse or de facto partner

The estate passes to the first group in this list that has a surviving member:

1. children, with grandchildren taking the share of a child who has died
2. parents, in equal shares
3. brothers and sisters (including half-brothers and half-sisters), with nieces and nephews taking the share of a sibling who has died
4. grandparents
5. aunts and uncles, with first cousins taking the share of an aunt or uncle who has died
6. the State, if no one in any of these groups survives.

Once a group has a surviving member, relatives further down the list receive nothing.

Who counts as a spouse, child or relative?

• A de facto partner counts as a spouse if the relationship was registered, had lasted at least two continuous years, or produced a child. A former spouse does not count.
• Adopted children are treated as children of their adoptive parents. Stepchildren do not inherit unless they were legally adopted.
• A relative must survive the deceased by at least 30 days to inherit.

Aboriginal and Torres Strait Islander estates

Where the deceased was an Aboriginal or Torres Strait Islander person, the administrator, or a person claiming under the laws, customs and traditions of the deceased’s community, can ask the Supreme Court to order a different distribution. The application must be made within 12 months of the grant and before the estate is fully distributed.

Dealing with an intestate estate requires a grant of letters of administration from the Supreme Court of NSW. It is the equivalent of probate, which applies only where there is a will.

One of the eligible relatives applies. The application includes evidence of who the deceased’s relatives are, the searches made for a will and, where relevant, the de facto relationship. A notice of intention to apply must be published at least 14 days beforehand. In some cases the Court requires a bond or other security, for example to protect a beneficiary under 18.

Where there is no will, there is nothing to challenge on grounds such as lack of mental capacity or undue influence. Those are grounds for challenging a will.

Instead, if you are an eligible person and have not been adequately provided for, you can apply to the Supreme Court for a family provision order. Eligible people include a spouse, de facto partner, child or former spouse, and some people who were dependent on the deceased and lived in the same household. This can matter for stepchildren and partners who do not meet the de facto test, who receive nothing under the intestacy rules.

A claim must generally be made within 12 months of the date of death. The Court can extend the time, but you should not rely on it. In NSW, the Court can also, in limited circumstances, treat property outside the estate as “notional estate” to meet a claim. Read more about contesting a will.

There is no fixed timeframe. It depends on how quickly relatives can be identified, the size of the estate, and whether anyone disputes entitlements or makes a family provision claim.

We help families through intestate estates across NSW: working out who is entitled, applying for letters of administration, and making or responding to family provision claims. Contact us for a free consultation.