Intestacy Rules: Who Inherits Without a Will

What Intestacy Means

Full intestacy arises when no effective will disposes of the estate. Partial intestacy arises when a valid will disposes of some property but leaves another part undisposed of.

A will that gives away a particular bank account can still leave a partial intestacy if it contains no effective gift of the residue. The residue is the property left after the estate’s liabilities and effective gifts have been dealt with.

A missing original will creates a different problem. The administrator must investigate whether a will exists and whether a copy or other evidence can be admitted. Failure to find the original does not itself establish that every testamentary gift fails.

The distribution rules identify entitled relatives and their shares. The label next of kin describes a family relationship whose legal effect depends on the particular rule being applied.

Which State’s Rules Apply

The applicable law depends on the deceased’s domicile, the type of property and its location. Domicile is a legal connection with a place, assessed from the person’s circumstances and intention to make a home there.

For intestate succession, the general choice-of-law rule applies the deceased’s domicile at death to movable property. Land generally follows the law of the place where it is situated. The NSW Chief Justice’s discussion of cross-border succession explains these principles and the decision in Kong v Yan.

Record the deceased’s home and migration history, any permanent move and the location and ownership of each asset. A bank’s head office or the place where the family applies for a grant does not, by itself, resolve the distribution law.

Also identify the legislation operative for the death. Commencement and transitional provisions can preserve an earlier distribution regime. The ACT Administration and Probate Act, for example, expressly addresses immovable property where the deceased was domiciled elsewhere.

Keep each asset within its applicable legal analysis when an estate crosses borders. Applying the table below to the entire estate solely because the deceased last lived in one state can produce the wrong result.

Distribution Rules by State and Territory

Each jurisdiction has its own partner entitlement and order of relatives. The comparison assumes full intestacy and a single surviving partner who satisfies that jurisdiction’s definition. “Children” includes descendants taking a deceased child’s share where the legislation provides for that result.

Jurisdiction and governing law	Partner and children	No partner and other relatives
NSW: Succession Act 2006, Chapter 4	The partner takes the whole estate if all the deceased’s descendants are also the partner’s descendants. If any are not, the partner receives personal effects, the indexed statutory legacy and half the balance. The deceased’s children share the other half, subject to representation.	Descendants come first, then parents, siblings and their descendants, grandparents, then aunts and uncles, with first cousins taking a deceased parent’s share. See Legal Aid NSW’s distribution explanation.
Victoria: Administration and Probate Act 1958, Part IA	A sole partner takes everything where there are no descendants or all descendants are also that partner’s. Otherwise, the partner receives personal chattels, the indexed statutory legacy with statutory interest and half the balance. The descendants receive the other half.	Descendants precede parents, siblings and their descendants, grandparents, then aunts and uncles or cousins by representation. The Victorian Act supplies the operative rules.
Queensland: Succession Act 1981, Part 3 and Schedule 2	Without descendants, the spouse takes everything. With descendants, the spouse receives household chattels and $150,000, then half the balance for one child’s branch or one-third for more than one. Descendants receive the balance.	Descendants precede parents, siblings and their children, grandparents, then aunts and uncles or their children. The Queensland Act defines the classes and shares.
Western Australia: Administration Act 1903, section 14	With descendants, the spouse receives household chattels and the applicable declared legacy, then half the residue for one child’s branch or one-third for more. Without descendants, parents or siblings can still share above a separate threshold.	Descendants precede parents, then siblings or the children of deceased siblings. Later relatives fall under the Act’s remaining provisions. Use the WA Act and its subsidiary orders for the applicable declared amounts.
South Australia: Succession Act 2023, Part 5	With no descendants, the partner takes everything. With descendants, the partner takes an estate up to $120,000. Above that threshold, the partner receives personal belongings, $120,000 and half the balance. Descendants share the other half.	Descendants precede parents, siblings and their children, grandparents, then aunts and uncles, first cousins and children of deceased first cousins. The SA distribution guidance explains the statutory order.
Tasmania: Intestacy Act 2010	A spouse takes everything unless the deceased has descendants who are not also descendants of that spouse. In that case, the spouse receives statutory personal effects, the indexed statutory legacy and half the balance. Descendants share the rest.	Descendants precede parents, siblings and their descendants, grandparents, then aunts and uncles or first cousins by representation. See the Tasmanian Public Trustee’s explanation.
ACT: Administration and Probate Act 1929, Part 3A and Schedule 6	With no descendants, the partner takes everything. With descendants, the partner receives personal chattels and an estate up to $200,000. Above that amount, the partner receives $200,000 with statutory interest, then half the balance for one child’s branch or one-third for more.	Descendants precede parents, then the statutory next-of-kin classes. The ACT Public Trustee and Guardian explains partner eligibility and links its distribution chart.
Northern Territory: Administration and Probate Act 1969, Schedule 6	With descendants, a spouse receives personal chattels and the prescribed legacy, then half the balance for one child’s branch or one-third for more. Without descendants, parents or siblings can share above a different prescribed threshold. De facto partners have additional statutory conditions.	Descendants precede parents, then the statutory next-of-kin classes. Read the NT Act with the Administration and Probate Regulations for the prescribed sums.

NSW Statutory Legacy and the Distributable Balance

In NSW, the statutory legacy is the spouse’s priority monetary entitlement when the deceased leaves descendants who are not all descendants of that spouse. Personal effects pass separately. Estate debts and administration expenses reduce what is available to distribute before the beneficiaries’ shares are paid.

Use the indexed legacy applicable to the death under section 106, including any interest entitlement. The original base figure is not the payable amount for every estate. The NSW Supreme Court’s intestacy guidance identifies the statutory calculation and the evidence needed for an administration application.

After personal effects and the applicable legacy are dealt with, the spouse receives half the remaining distributable balance. The deceased’s descendants share the other half under the representation rules. If the available estate cannot satisfy the spouse’s priority, descendants receive no residual share under that formula.

An indexed legacy is a statutory calculation, not a permanently fixed figure. NSW, Victoria and Tasmania use indexation provisions. WA uses declared amounts under its legislation. Select the amount applicable to the death before calculating the residue or any interest entitlement.

Where the partner’s priority exhausts the available estate, children can receive nothing under the default formula. Conversely, Queensland children can share even when they are children of the surviving spouse. The NSW and Victorian all-common-children rule cannot be applied nationally.

If the permitted family classes are exhausted, an estate can pass to the relevant government. Special statutory routes can affect that result, including provisions for distribution of Indigenous estates in NSW, Tasmania and the Northern Territory.

Family Relationships That Change Entitlement

A family tree must record legal parentage and qualifying relationships, including relatives who died shortly after the deceased. A list of living family members alone can miss an entire beneficiary branch.

Partners and Multiple Relationships

The legal definition of spouse comes from the governing succession statute. In NSW, sections 104 and 105 cover a person married to the deceased immediately before death or a qualifying domestic partner. A domestic partnership includes a registered relationship or a de facto relationship lasting continuously for at least two years or resulting in a child.

Obtain marriage and divorce records, relationship registration and evidence of the de facto relationship where relevant. Resolve the relationship at death and the applicable survival conditions before using the partner’s share. A tax, superannuation or emergency-contact definition does not replace the succession test.

A de facto relationship does not have one national qualifying test. Queensland Public Trustee states that a de facto partner must satisfy a continuous two-year relationship requirement for intestacy.

Tasmania recognises a registered personal relationship, or a qualifying significant relationship lasting two years or resulting in a child. ACT guidance also identifies a two-year domestic relationship or being the parent of the deceased’s child. Apply the statutory definition to the facts, including any registration.

Victoria’s unregistered domestic partner must have lived with the deceased as a couple on a genuine domestic basis at death. The relationship must also meet the two-year test, or they must share a child under 18. Registered domestic and caring partners have separate definitions.

A separated legal spouse and a de facto partner can both require consideration. NSW and Victoria have provisions for multiple partners, as do the other jurisdictions. WA and the Northern Territory have distinct conditions affecting competition between a spouse and a de facto partner. Do not divide the estate between partners before resolving those conditions.

Children and Deceased Branches

Adoption can establish the parent-child relationship for intestacy. Record the adoption and its legal effect on the birth family. A stepchild’s relationship alone does not give the same automatic entitlement as being the deceased’s child.

“By representation” means descendants take through a deceased family member’s branch. In NSW, if a child has died leaving surviving children, those grandchildren share that child’s entitlement. They do not necessarily receive the same amount as each surviving child of the deceased.

The historical label “illegitimate child” does not determine entitlement under modern NSW law. The Status of Children Act 1996 establishes equal status regardless of whether the parents married. Apply the governing jurisdiction’s parentage and succession rules to establish the legally recognised relationship.

The solicitor examines birth records and any adoption or parentage orders, including orders concerning assisted reproduction or surrogacy where relevant. A family description alone cannot resolve conflicting evidence about legal parentage.

Survivorship and Missing Relatives

A 28-day survivorship rule is not an Australian intestacy default. Queensland requires 30 days under section 35(2). Victoria’s section 70C also requires 30 days, with an exception where the estate would otherwise pass to the Crown.

Tasmania’s section 8 requires 30-day survival and includes a separate rule for a child born after the death. South Australia’s section 101(4) treats a partner who dies within 30 days as not surviving. Apply each relevant provision before drawing the final beneficiary branches.

A missing beneficiary is different from a person proved to have died. Preserve that person’s possible share while investigating their identity and survival. NSW Trustee and Guardian describes the certificate searches needed to establish entitled relatives, including overseas family searches.

Worked Intestacy Examples

The distribution changes when the jurisdiction or family facts change. These hypothetical examples use net assets after liabilities and assume the required survival and relationship conditions are satisfied.

Queensland Partner and Two Children

Assume a Queensland intestate estate has $750,000 available after household chattels have been set aside for the sole surviving spouse. The deceased leaves two surviving children.

The spouse receives the first $150,000. That leaves $600,000, of which the spouse receives one-third, or $200,000. The spouse’s monetary entitlement is therefore $350,000, plus the household chattels. Each child receives $200,000.

The result is the same whether those children are also children of the surviving spouse. It differs from a NSW estate where all the deceased’s children are also that spouse’s children.

NSW With No Partner

Assume a NSW estate has $600,000 available and no surviving spouse. The deceased leaves one living child and two grandchildren through a child who died earlier.

The living child receives $300,000. The deceased child’s $300,000 branch divides equally between the two grandchildren, giving each $150,000. Dividing the estate into three equal $200,000 shares would ignore representation through the deceased child’s branch.

Partial Intestacy

Assume a NSW will makes an effective $50,000 gift to a friend but contains no effective residue clause. After paying liabilities and that gift, $150,000 remains. The deceased leaves no spouse and two surviving children.

The friend takes the $50,000 under the will. Each child takes $75,000 from the undisposed residue under intestacy. The will’s effective gift remains governed by the will.

Other partial-intestacy facts need separate treatment. A gift already received under the will can affect the calculation under a jurisdiction’s partial-intestacy provisions. An old flowchart cannot resolve that adjustment, a changed legacy or a different partner definition.

Establishing the Distributable Estate

Calculate entitlements against the estate available after its liabilities, using the legislation’s treatment of personal property and priority legacies. A gross asset list is not the sum beneficiaries can divide.

Identify sole-owned property and the deceased’s share of property held as tenants in common. Joint-tenancy property generally passes to the survivor outside the estate. Superannuation and insurance proceeds depend on their governing arrangements and whether they are paid to the estate.

Reconcile bank balances at death with later receipts and payments. Keep transfers between estate accounts separate from income, and distinguish a documented debt from an unexplained withdrawal. Investigate disputed ownership before including the whole account balance in the distribution calculation.

For example, moving $40,000 from the deceased’s savings account into the estate account does not create an additional $40,000 asset. Record the movement once in the estate’s reconciliation, with both statement references.

FinTrace saves estate lawyers and forensic accountants hours of statement review by consolidating supplied PDFs into a searchable Excel ledger and findings report. Every finding cites the source PDF filename and page, so the transaction evidence is at hand when reconciling the estate. Relationship status and beneficiary entitlement remain questions for the governing succession law.

If debts could exhaust the assets, establish the insolvent estate payment framework before promising distributions to beneficiaries.

Disputed Entitlement and the Next Administration Step

A dispute about whether someone is a qualifying partner concerns the facts used in the intestacy formula. A family provision claim asks the court to make provision different from the default result because the statutory test is met.

The family provision legislation is jurisdiction-specific. NSW uses Chapter 3 of the Succession Act 2006, Victoria Part IV of the Administration and Probate Act 1958 and Queensland Part 4 of the Succession Act 1981. South Australia uses Part 6 of its Succession Act 2023.

The separate statutes are WA’s Family Provision Act 1972, Tasmania’s Testator’s Family Maintenance Act 1912, the ACT’s Family Provision Act 1969 and the NT’s Family Provision Act 1970.

Eligibility and time limits belong to the relevant claim route. Establish them before distributing property that a claim could affect. Being entitled under intestacy does not itself supply the authority required to administer the estate.

Administering an Intestate Estate

An intestate estate is the property requiring administration and distribution under intestacy law. The administrator collects and protects that property, deals with liabilities and distributes the balance to entitled beneficiaries.

The administrator and beneficiaries perform different roles. An administrator can also be a beneficiary, but appointment does not enlarge that person’s inheritance share. The grant supplies authority to manage the estate’s assets and make the distribution.

Once you have identified the applicable law and the potential beneficiaries, establish who can apply for letters of administration. Prepare the supporting family evidence and asset-and-liability schedule so the grant application and distribution calculation use the same estate facts.

Research an Intestate Estate

Intestate estate research establishes the will search outcome and the family evidence needed to apply the correct distribution rules. Begin with the deceased’s domicile and asset locations, then record which property remains undisposed of by an effective will.

Build the family tree from certificates and other records that establish legal relationships. Record births and deaths within each branch, including survival after the deceased’s death. Reconcile conflicting names or parentage evidence before treating the tree as the basis for a share calculation.

NSW Trustee and Guardian’s research guidance describes searches through the relevant registries and the evidence needed to establish each category of relatives. Research can cross state or national boundaries when the family has lived elsewhere.

An investigator’s reconstructed family tree and asset record supply evidence for the estate lawyer’s entitlement decision. Keep the supporting records with the proposed distribution schedule, so each share follows an established relationship and the applicable law.