Dying without a will is called dying "intestate". It rarely means the State takes your estate. It means a fixed formula decides who inherits, a court must appoint someone to deal with the estate, and nobody has chosen who raises your children.

Jane (48) and John (50) Doe are married and live in Western Sydney. They have 2 children, Mia (19) and Leo (15), and John has a son, Sam (24), from a previous relationship. Their home is owned as joint tenants, they own an investment unit in Penrith as tenants in common, John runs his own plumbing company and both have super.

Who inherits if you die without a will in NSW?

The intestacy rules set out a strict order. You only move down the list if there is nobody in the level above.

1. Spouse or de facto partner: if all your children are also your partner's children (or you have no children), your partner takes the whole estate.
2. Spouse plus a child from another relationship: your partner takes your personal effects, a fixed sum called the statutory legacy and half of what is left. All of your children share the other half equally.
3. Children, no partner: your children share equally. Adopted children count, stepchildren do not. If a child has died before you, their children take that child's share.
4. Parents: if there is no partner and no children or grandchildren, your parents share equally.
5. Brothers and sisters: full and half siblings share equally. If a brother or sister has died before you, their children (your nephews and nieces) take the share that sibling would have received.
6. Grandparents: they share equally.
7. Aunts and uncles: they share equally.
8. First cousins: if an aunt or uncle has died before you, their children take that aunt or uncle's share.
9. The State of NSW: only if there is nobody in any of these groups. A dependant, someone with a just or moral claim, or a person or organisation you might reasonably have been expected to provide for can ask the State to give up some or all of the estate in their favour.

To inherit under these rules, a person must survive you by at least 30 days. Stepchildren, friends, charities and relatives beyond first cousins receive nothing.

Who counts as a spouse or partner?

• Married spouse: a husband or wife counts until a divorce order takes effect. A spouse you separated from years ago, but never divorced, can still inherit.
• De facto partner: counts only if you had lived together for at least 2 years, had a child together or registered the relationship. A partner of 18 months with no child together gets nothing.
• More than one spouse: if, for example, you were separated but not divorced and had a new de facto partner, both can qualify. They share the spouse's entitlement by written agreement, by court order, or in equal shares.

How much does the partner get where there is a child from another relationship?

This is the Does' situation. The partner receives:

• Personal effects: your household items, car, jewellery and similar personal belongings, but not property used only for business, cash, investments such as gold bullion, or land.
• The statutory legacy: a fixed sum that is indexed to inflation every quarter. The figure at your date of death applies. Because it changes regularly, the current figure should be checked at the time of death.
• Half the remainder: whatever is left after the legacy is split in half. Your partner takes one half and all your children, from every relationship, share the other half.

If the estate is worth less than the legacy, the partner takes everything and the children receive nothing from the estate.

What would happen to the Doe family?

Here is how the rules would apply to the Does if neither had a will. Assume John's estate (his half of the Penrith unit, his company shares and his cash) is worth about $700,000. The home is not part of either estate, because it is held as joint tenants.

In every case where Leo inherits, his share is held for him until he turns 18 and then paid to him outright, with no testamentary trust and no later age of access.

Why does it take longer to deal with an estate without a will?

With a will, the executor you named applies to the Supreme Court for probate. In our experience a straightforward probate application is granted in about 4 weeks, or 6 to 8 weeks in busy periods.

Without a will there is no executor. A family member must apply for letters of administration, usually the person with the greatest entitlement, such as the spouse or an adult child. The court then has to be satisfied who is entitled to the estate before it appoints anyone, and that has to be proved with evidence.

Take an only child applying for their late father's estate. They must prove by affidavit that he had no spouse or de facto partner when he died and no other children, often with sworn evidence from people who knew him well, and the registry commonly comes back with questions. Where a beneficiary is under 18 and cannot give consent, the court can also require an administration bond and sureties (people who guarantee the administrator will deal with the estate properly) to protect the child's share. In our experience letters of administration can take a year or more, compared with about 4 weeks for probate.

Until then, property generally cannot be sold or company shares dealt with. See our guide to probate vs letters of administration for the full process.

What passes outside the intestacy rules?

Some of your most valuable assets may never be part of your estate, with or without a will.

• Jointly owned property: property held as joint tenants passes to the surviving owner automatically. Property held as tenants in common forms part of your estate. See joint tenants vs tenants in common.
• Superannuation: super and any life cover inside it are paid by the fund trustee, under a valid binding death benefit nomination or at the trustee's discretion. It only goes through the intestacy rules if it is paid to your estate.

For the Does, the home goes to whoever survives as joint tenant and Jane's super goes wherever her fund decides. Sam only shares in what is left in John's estate.

What happens if both partners die at the same time?

Joint ownership and "everything goes to my partner" only work if the partner survives. Where a couple die together, or within 30 days of each other, each estate is dealt with as if the other partner had already died, so it passes straight down the intestacy order to the children, or further out if there are none.

Where it cannot be established who died first, NSW law treats the deaths as happening in order of age, so the younger person is treated as surviving the older. As the Doe table shows, that can decide which side of a blended family receives the home.

Who looks after the children if you die without a will?

The intestacy rules deal only with property. They say nothing about who cares for your children. If the other parent survives you, they usually continue to have parental responsibility.

In NSW a parent can appoint a guardian for children under 18, by will or by deed, and a will is the usual place to do it. Without that appointment, and with neither parent alive, there is no default order. Grandparents, aunts and uncles or adult siblings have no automatic right or authority. A relative or anyone else concerned with the children's care would generally need to apply to the court, usually the Federal Circuit and Family Court of Australia, for parenting orders, and the court decides on the children's best interests.

Until orders are made, the person actually caring for the children can run into practical problems:

• School: enrolling the child or changing schools, and being recognised as the contact person.
• Medical treatment: consenting to non-urgent treatment, surgery or ongoing care.
• Passports and travel: applying for a passport or taking the child overseas.
• Money: the child's share of the estate is managed by the administrator, not by the carer, so the carer may be paying for the child's needs out of their own pocket.

Why "everything goes to my partner anyway" often fails

This is the most common reason people give for not having a will. It is only true in some families.

• Children from another relationship: your partner gets the legacy and half of the rest, not everything.
• Short de facto relationships: a partner of under 2 years with no child together is not a spouse and can be left with nothing.
• Separation without divorce: a former spouse you never divorced can still inherit, and may share with your new partner.
• Dying together: if your partner does not survive you by 30 days, the law decides both estates.
• Paperwork: even a partner who inherits everything must still apply for letters of administration, which takes far longer than probate.
• Children inherit at 18: there is no testamentary trust, no protection from a child's later relationship breakdown or bankruptcy, and no later age of access. See our guide to testamentary trust wills.
• Business control: if you are the sole director and shareholder of your company, there may be nobody able to run it until someone has authority to deal with your shares.

A will, with the right ownership structure and a super nomination, lets you decide who inherits, who manages the estate and who raises your children. Our estate planning page explains the documents we prepare and their fixed fees.

If a family member has died without a will, see our deceased estate property transfer page. For your own planning, book an estate planning consultation with Corporate Legal by Microsoft Teams or phone.

For an official summary, see Legal Aid NSW on applying for letters of administration.

This article is general information only, current as at October 2026, and is not legal, financial or tax advice. Estate planning, tax and Centrelink rules change over time and their effect depends on your circumstances. You should obtain advice specific to your situation before acting.