Losing a loved one is challenging enough, but discovering they departed without a valid will creates an additional layer of uncertainty and stress. While most people assume assets automatically pass to the next of kin when someone dies without a will, that isn’t the case in New South Wales. Many people die without a will, and New South Wales has a legal framework with a strict set of guidelines that dictate precisely how the deceased’s property, belongings, and money must be divided.

We break down NSW’s intestacy rules in plain English so you understand who is legally entitled to a deceased estate and what steps come next. 

What Is Intestacy? 

When someone dies “intestate”, it means they passed away without leaving a valid will. “Intestacy” is the legal term for someone dying intestate.

As there is no legal document to outline the deceased’s final wishes, the law steps in to decide how their estate, which encompasses bank accounts, investments, personal belongings, and property, will be shared out among the deceased’s surviving relatives. The Succession Act 2006 (NSW) outlines who is eligible in New South Wales.

Who Inherits Under NSW Intestacy Rules? 

The intestacy rules outline family relationships based on a strict order of priority. While it’s predictable, the precise outcome depends on the deceased’s specific family structure at the time of their death.

  • Spouse (or de facto partner) only

The spouse (or de facto partner) inherits the entire estate if there are no children.

  • Spouse (or de facto partner) and children from the same relationship

The spouse (or de facto partner) inherits the entire estate, even if there are children from their relationship. The law assumes that the spouse (or de facto partner) will continue to provide for their children.

  • Spouse (or de facto partner) and children from other relationships

The spouse (or de facto partner) would split the estate if there are children from a previous relationship. While the surviving partner inherits half of the remaining estate, all personal belongings, and a statutory legacy, the children share the remainder of the estate equally between them. 

  • Only children 

If there is no surviving spouse (or de facto partner), the children divide the deceased’s estate equally.

  • No spouse, no children 

If there is no surviving partner and there are no children, the estate moves to a strict family tree order. The parents come first, then siblings, grandparents, aunts and uncles, and first cousins. 

  • No eligible persons

If no eligible persons can be found, the deceased’s estate passes to the NSW government.

Common Misconceptions

Estate law is complex, which is why many myths persist around who is protected when someone dies intestate. 

  • Unmarried Partners Aren’t Protected Automatically

To inherit under intestacy rules, a long-term partner must only prove they were in a genuine domestic relationship and had been living together for a period of at least two years (or have a child together). 

  • Step-Children Don’t Automatically Qualify

Biological, adopted, and step children all qualify as eligible persons. However, in the case of step-children, they may not qualify automatically if they weren’t legally adopted. They would need to seek provisions under Section 57 of the Succession Act 2006 (NSW).

  • No Verbal Promises 

Whatever the deceased may have repeatedly promised you verbally, it does not override intestacy rules. The law only recognises final wishes in written, valid wills.

Intestacy NSW: What to Do if Someone Dies Without a Will 

If you are managing a deceased relative’s affairs and they passed intestate, you can prevent legal errors by taking a methodical approach. 

  • First, confirm there is no will. Search the deceased’s personal effects, files, home, office, and any other location where they may store paperwork. Contact their solicitor and bank, and check New South Wales’ Supreme Court probate registry to confirm the will does not exist.
  • Second, apply for letters of administration. Before you can formally distribute an intestate estate, you need legal authorisation to manage it. The Supreme Court can file Letters of Administration, which is a legal document that entitles you to administer the estate. This role typically falls to a spouse or a child, generally the individual with the largest estate entitlement. 
  • The next step is to identify all eligible relatives, locating and verifying their status according to the law, before you distribute assets. 

Whether you’re trying to prove your de facto relationship without clear paperwork or managing a blended family tree, the earlier you pursue professional legal advice, the safer you are from a legal standpoint.

Frequently Asked Questions 

Does my long-term partner automatically inherit if we aren’t married? 

It isn’t automatic. New South Wales law fully recognises de facto relationships. However, you must provide clear evidence that you meet the criteria for a de facto relationship when the deceased died before assets can be released to you.

What happens to step-children under NSW intestacy rules? 

Under standard intestacy rules, step-children aren’t automatically provided for. If a stepchild has been left without adequate provision and was dependent on the deceased at the time of their death, they are eligible to file a family provision claim. 

How long does it take to administer an estate without a will?

An intestate estate takes longer to administer than an estate with a will. Expect it to take longer than 12 months, given the need to apply for Letters of Administration and identify eligible persons. 

How AJB Stevens Can Help 

Grief is exhausting, and trying to process your emotions while handling the legalities of an estate can be overwhelming. At AJB Stevens, our calm and compassionate team of experienced lawyers can provide practical guidance throughout the intestacy and estate administration process. Whether you feel you have been unfairly excluded from an estate or require assistance to obtain Letters of Administration, we can help. 

Arrange a free consultation to discuss what comes next. We’re happy to meet you in person, over the phone, or via video consultation.