Updated 4 November 2026
CM Law's Ultimate 50 List: Making a Will #41 - What is intestate succession?
Without an effective will, inheritance is determined by legal rules rather than a family vote. In NSW, those rules can produce unexpected results for blended families, unmarried partners and people who expected a particular asset. Before dividing anything, establish whether there is a will, what belongs to the estate and who is legally entitled.
What does dying intestate mean?
A person dies intestate when they leave no effective will disposing of some or all of their property. Intestacy can therefore be complete or partial. Chapter 4 of the NSW Succession Act identifies who receives the intestate estate, after proper funeral and administration expenses, debts and other liabilities have been dealt with.
The NSW overview explains the basic order of entitlement. These rules do not necessarily match what the deceased told relatives they wanted. Different rules can apply to older deaths or assets outside NSW, so check dates and locations before calculating shares.
Should we assume there is no will if we cannot find the original?
No. Search carefully and obtain advice about copies, earlier wills and any informal documents before proceeding on intestacy. A missing original does not always mean there is no will capable of being proved. Conversely, an unsigned note or family recollection does not automatically establish a valid testamentary document.
Contact the deceased’s solicitor and investigate likely storage locations. The Court’s complex probate guidance addresses missing and informal wills. Preserve documents in their original condition; do not discard a copy because it seems incomplete or try to repair it yourself.
Which assets are distributed under the intestacy rules?
The rules apply to the deceased’s estate property that is not effectively disposed of by will. Jointly owned property held as joint tenants ordinarily passes to the surviving owner instead. Superannuation, life insurance, company property and trust assets require separate checking; they do not automatically join the intestate estate.
A tenant-in-common share is different from joint tenancy and generally forms part of the estate. Court guidance explains why ownership matters. Prepare an asset list with title details and account records, rather than assuming everything used by the deceased was personally owned.
Who manages an estate when there is no executor?
A person appointed by the Supreme Court through letters of administration manages an intestate estate where a grant is required. Applicants are generally people entitled to inherit, subject to the Court’s requirements. Being the eldest child or the relative organising the funeral does not automatically make someone the administrator.
Letters of administration authorise collection, payment of liabilities and distribution. Some modest estates can be handled without a grant, depending on asset holders. Keep records and obtain advice about notices, claims and reserves before transferring money to relatives.
Who qualifies as a surviving spouse or partner?
A spouse includes someone married to the deceased immediately before death and a qualifying domestic partner. Domestic partnership includes a registered relationship or a de facto relationship lasting continuously for at least two years, or resulting in a child’s birth. These inheritance tests should not be confused with other agencies’ relationship definitions.
Sections 104–105 of the Succession Act and the NSW de facto definition govern this assessment. Separation alone does not end a legal marriage. Relationship registration, divorce dates, shared living arrangements and supporting documents may therefore be important when establishing entitlement.
When does one surviving spouse inherit the whole estate?
Where there is one surviving spouse and no descendants, that spouse receives the whole net intestate estate. The same applies where all the deceased’s descendants are also descendants of that spouse. Children do not automatically receive a separate share merely because their parent died without a will.
These are the rules in sections 111–112. They concern entitlement after liabilities, not immediate ownership of every asset. If a child has already died leaving descendants, include that family branch when checking the rules rather than considering surviving children alone.
What changes when the deceased has children from another relationship?
Where there is one surviving spouse and a descendant who is not also that spouse’s descendant, the spouse receives personal effects, the statutory legacy and half the remainder. The descendants’ entitlement is to the other half. The children sharing are not limited to those from the earlier relationship.
Legal Aid NSW explains that children from the current relationship also share the children’s portion. Deceased children’s branches require the representation rules. A smaller estate may be exhausted by the spouse’s priority entitlement, leaving no remaining amount for descendants.
How much is the spouse’s statutory legacy?
The statutory legacy is CPI-adjusted under section 106, using the deceased’s date of death to determine the applicable amount. It is not a permanent $500,000 figure. Interest can also become payable if the legacy remains unpaid after one year. Have the calculation checked before estimating what remains for other beneficiaries.
Use the statutory calculation, rather than a number copied from an older article. The legacy is an entitlement within the available estate, not a government payment. The surviving spouse may also have a regulated right to elect to acquire estate property; obtain advice promptly.
What happens if there is more than one surviving spouse?
NSW law recognises that a deceased person may leave more than one qualifying spouse, such as a legal spouse and a de facto partner. Their entitlements require the multiple-spouse provisions. Property may be divided by written agreement, court order or the statutory equal-sharing process after its notice requirements are satisfied.
Do not assume each spouse receives a separate full statutory legacy or that automatic equal division is always appropriate. Where relevant, the spouses share the prescribed legacy and spouse’s portion. Sections 122–126 also address descendants and permit a just and equitable court distribution.
How do children and grandchildren inherit when there is no spouse?
The descendants take the net intestate estate under the statutory representation rules. Surviving children ordinarily share equally. Where a child has died leaving descendants who qualify, that child’s family branch takes their presumptive share. Grandchildren do not generally share alongside their own living parent simply because they are also relatives.
Legally adopted children are included; stepchildren are not automatically children for this purpose. The administration guidance explains these distinctions. Parentage, adoption and survival evidence should be checked, particularly where family records are incomplete or a beneficiary is a minor.
Which relatives inherit if there is no spouse or descendant?
The next categories are parents, then siblings and their qualifying descendants, grandparents, and aunts and uncles, with first cousins able to represent a deceased aunt or uncle. The order matters: a later category does not share simply because its members were close to the deceased. Each relevant family branch must be investigated.
If nobody is entitled, the estate passes to the State, subject to available statutory processes. Discretionary provision may be possible in appropriate cases. Friends, charities and more distant relatives should not assume affection or financial assistance alone creates an automatic intestacy entitlement.
Must a beneficiary survive the deceased for a minimum period?
Generally, a person already born must survive the intestate by at least thirty days to qualify. Special rules address a child born after the death following a pregnancy already underway. The survival rules also have an exception where applying them would cause the estate to pass to the State.
Section 107 governs survival on intestacy. If deaths occur close together, obtain certificates and advice before treating an entitlement as part of the second person’s estate. Do not assume the survival wording from an unrelated will applies to an intestate estate.
Can the usual intestacy outcome be changed?
Sometimes. An eligible person may seek family provision if the statutory outcome does not make adequate provision, and special distribution provisions apply to eligible Aboriginal and Torres Strait Islander estates. Neither process is an automatic entitlement to a larger share. Obtain advice promptly about eligibility, evidence and the relevant deadlines.
Family provision claims generally have a twelve-month deadline from death, subject to court permission on sufficient cause or the parties’ consent. The First Nations estate provisions involve a different procedure considering community laws, customs, traditions and practices; seek advice before distribution.
What does a real NSW intestacy case show?
In NSW Trustee and Guardian v Payne [2024] NSWSC 1371, the Court found that a longstanding couple qualified as de facto partners despite maintaining separate homes. David Hooper had died intestate without descendants. The finding meant his estate passed through Margaret Payne’s estate, rather than to his surviving cousins.
The court’s reasons examined decades of daily routines, shared meals, household tasks, personal belongings and mutual support. The Judge found sufficient common living, not merely emotional closeness. Margaret survived David but died before the decision, so distribution was ordered to the administrators of her estate.
The result depended on detailed evidence and the NSW statutory definition. It does not mean every long relationship qualifies or that a shared address is irrelevant. My practical advice is to document your wishes in a will instead of leaving loved ones to prove relationship status later.
How can I prevent these uncertainties or obtain help after a death?
A carefully prepared will can identify beneficiaries, substitutes and an executor, while addressing assets and family circumstances that need separate planning. Review it after major changes and keep the original accessible. After a death, CM Lawyers can help assess intestacy, identify the appropriate administrator and work through entitlement and distribution questions.
Our making a will service and estate administration service address both planning and practical next steps. Contact CM Lawyers on (02) 9557 9000 or lawyers@cmlaw.com.au. Bring family information and documents before assuming the statutory outcome is obvious.
General information only, current at 4 November 2026. Obtain advice about the deceased’s documents, family relationships, assets, liabilities and relevant dates before distributing an estate.
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