A clear guide to the rules of intestacy in Australia (2025)

Ever wondered what happens to your assets if you pass away without a valid Will? It’s not a pleasant scenario, but the outcome matters: your wishes are not considered. This situation is called "dying intestate," and it means your entire estate (home, money, car, and other assets) is distributed according to a statutory formula.

In that case, the relevant state or territory legislation determines who receives what. These rules of intestacy in Australia apply uniformly and cannot reflect your personal circumstances. This can lead to difficult outcomes, such as a long-term partner needing to establish the relationship in court, or a close friend who was like family receiving nothing.

This guide explains the different rules for each state and territory, showing how much is left to legislation rather than preference. It also highlights why making a Will is a practical way to ensure your intentions are followed.

Intestacy rules in New South Wales (NSW)

In New South Wales, the distribution of an estate without a Will is governed by the Succession Act 2006 (NSW). To start the process, a relative (usually the closest) applies to the Supreme Court for "Letters of Administration." This document authorises them to manage and distribute the deceased’s assets.

How an estate is divided in NSW

Here’s an overview of how an estate is typically divided:

• If you have a partner but no kids: Your partner inherits your entire estate.

• If you have a partner and children from that relationship: Your partner still receives the entire estate. The law assumes they will provide for the children.

• If you have a partner and kids from a previous relationship: Different rules apply. Your partner is entitled to:

  1. All your personal effects (things like jewellery, furniture, and cars).

  2. A "statutory legacy," which is a lump sum currently around $500,000 (indexed for inflation).

  3. Half of whatever is left after that. The children from your previous relationship share the other half of what remains.

• If you have kids but no partner: Your estate is split equally among your children.

• If you have no partner or children: Your assets go to your relatives in a set order: first your parents, then siblings, then grandparents, and so on.

Intestacy rules in Victoria (VIC)

Victoria's rules are broadly similar to NSW’s, though the exact amounts and details can differ. It shows how outcomes can vary between states.

How an estate is divided in VIC

• If you have a partner but no kids: Your partner receives the whole estate.

• If you have a partner and children from that relationship: Your partner inherits the entire estate.

• If you have a partner and children from a previous relationship: Your partner is first in line for:

  1. All your personal belongings (or "chattels").

  2. A statutory legacy, which is around $490,000 but is adjusted each year.

  3. Half of the rest of the estate. Your children from the other relationship share the balance.

• If you have children but no partner: Your kids share the estate equally.

• If you have no partner or kids: Distribution follows the family hierarchy, starting with your parents, then siblings, and so on.

Intestacy rules in Queensland (QLD)

Queensland’s Succession Act 1981 (QLD) differs in several respects, particularly regarding the statutory legacy and how the residue of the estate is divided.

How an estate is divided in QLD

• If you have a spouse but no kids: Your spouse inherits the entire estate.

• If you have a spouse and children: In Queensland, your spouse is entitled to:

  1. All your household items.

  2. The first $150,000 from your estate.

  3. A share of what remains. If you have one child, your spouse gets half of the remainder. If you have two or more children, your spouse receives one-third. Your children share the rest.

• If you have children but no spouse: The estate is divided equally among them.

• If you have no spouse or children: Your estate passes to your relatives in the standard order: parents, siblings, etc.

Intestacy rules in South Australia (SA)

South Australia illustrates how these laws can change. The Succession Act 2023 (SA) introduced new rules commencing on 1 January 2025, underscoring the complexity and evolving nature of this area of law.

How an estate is divided in SA (from 1 Jan 2025)

• If you have a spouse/partner but no kids: Your partner gets everything.

• If you have a spouse/partner and children:

  • If your estate is worth $120,000 or less, your partner receives it all.

  • If it's worth more, your partner gets:

    1. Your personal belongings.

    2. The first $120,000.

    3. Half of what’s left over. Your children then split the other half of the balance equally.

• If you have kids but no spouse/partner: Your estate is divided equally among your children.

• If you have no spouse/partner or kids: The estate is passed on to other relatives based on a predetermined list.

Intestacy rules in Western Australia (WA)

Western Australia uses different monetary thresholds to determine how an estate is divided. It’s another example of how jurisdiction affects outcomes if you die without a Will.

How an estate is divided in WA

• If you have a spouse/partner but no kids: Your partner inherits the entire estate.

• If you have a spouse/partner and children:

  • If the estate is valued below a certain amount (around $472,000, indexed), your spouse gets everything.

  • If the estate is worth more, your spouse receives that threshold amount plus one-third of the rest. Your children then share the remaining two-thirds.

• If you have kids but no spouse/partner: Your children share the estate equally.

• If you have no spouse/partner or kids: The law sets out a clear order for how your assets are distributed to other family members.

Intestacy rules in the Australian Capital Territory (ACT)

The ACT has its own thresholds and rules, particularly for estates divided between a partner and children.

How an estate is divided in the ACT

• If you have a spouse/partner but no children: Your partner gets the entire estate.

• If you have a spouse/partner and children:

  • If your estate is valued at less than $200,000, your spouse receives it all.

  • If it's over $200,000, your spouse gets the first $200,000. The rest is split:

    • With one child, your spouse and the child each get half.

    • With more than one child, your spouse gets one-third, and the children share the other two-thirds.

• If you have children but no spouse/partner: The estate is divided equally among your kids.

• If you have no spouse/partner or children: Your assets are distributed based on the legal order of succession.

How the state rules compare

The differences among states and territories are significant, especially when you have a partner and children from a previous relationship. This table shows how outcomes can vary depending on jurisdiction.

Pro Tip: The fact that your postcode can completely change who inherits your assets is a substantial risk. It’s variability you can avoid by having a legally valid Will.

What about de facto partners?

The good news is that all Australian states and territories recognise de facto partners, including same-sex partners, in their intestacy laws. The challenge is that the relationship may need to be proven in court, which can be difficult during a period of grief.

To be recognised, a surviving de facto partner usually has to show they:

• Lived with the deceased for a certain amount of time (usually two years).

• Had a child together.

• Or had registered the relationship with the relevant state authority.

This places an evidentiary burden on the surviving partner. They may need to produce documents and make submissions to a court, causing delays, emotional stress, and legal costs. A clear, legally binding Will removes that uncertainty and protects your partner from having to establish their entitlement.

This video explains the consequences and legal framework when someone passes away without a valid will.

The problem with 'statutory legacies'

You've seen the term 'statutory legacy' mentioned several times. It refers to a defined sum a surviving partner receives in certain situations. However, "defined" does not mean fixed indefinitely.

These amounts are usually indexed each year to keep up with inflation (based on the Consumer Price Index, or CPI). As a result, the amount a spouse is entitled to can change from year to year. It creates variability, making it difficult to predict how your estate will be divided in the future. This uncertainty is another reason to set your own terms in a Will rather than relying on a changing statutory formula.

The only way to take control: Making a Will

Ultimately, the rules of intestacy in Australia are a default mechanism. They do not account for modern blended families, close friends you consider family, step-children you have raised, or charities you support. Leaving your estate to these rules effectively places key decisions in the hands of a prescribed legal framework.

Outcomes can vary significantly. They may lead to family disputes, unintended beneficiaries receiving assets, and different results depending on where you reside.

The practical solution is to create a legally binding Will. It’s the most reliable way to ensure your estate is distributed according to your wishes, giving your loved ones clarity and certainty.

And you don't need an expensive, time-consuming visit to a lawyer's office to arrange it. Modern online platforms like Willfully.com.au make it simple, affordable, and secure to create your Will from home. Every Will is reviewed by qualified lawyers, helping to ensure it is legally binding and provides peace of mind.

Related articles and further reading

• What is a Will and why do I need one?

• Choosing an Executor for your Will.

• How to update your Will after a major life event.

Frequently Asked Questions

What are the main consequences of the rules of intestacy Australia?

The primary consequence is that your estate is distributed by strict government formulas, not your personal wishes. This can lead to your assets going to unintended beneficiaries or causing significant disputes among family members who might have different expectations.

How do the rules of intestacy Australia differ if I have a de facto partner instead of a married spouse?

While all Australian jurisdictions recognise de facto partners, the rules of intestacy Australia often require the surviving partner to prove their relationship in court. This process can be emotionally taxing, time-consuming, and incur legal costs, adding significant burden during a period of grief.

If I don't have a Will, will the rules of intestacy Australia allow my step-children to inherit?

Generally, no. The rules of intestacy Australia prioritize biological or legally adopted children. Step-children typically do not have an automatic right to inherit under these laws unless they have been formally adopted, which means they could receive nothing.

Can the rules of intestacy Australia prevent my preferred beneficiaries (like a close friend or charity) from inheriting?

Yes. The rules of intestacy Australia follow a strict hierarchy of blood relatives and spouses. Friends, charities, or other non-family members you intended to benefit will receive nothing, as these rules do not account for personal relationships outside of the legal family structure.

What happens if I move interstate; do the rules of intestacy Australia change depending on where I live?

Yes, they do. The rules of intestacy Australia are specific to each state and territory, as detailed in the guide. Your estate will generally be administered according to the laws of the state or territory where you were permanently domiciled at the time of your death, leading to potentially different distribution outcomes.

How can I ensure my wishes override the rules of intestacy Australia?

The only way to guarantee your wishes are followed and to override the rules of intestacy Australia is to create a legally valid and up-to-date Will. A Will allows you to explicitly name your beneficiaries, specify asset distribution, and appoint an executor, providing clarity and peace of mind for your loved ones.