Die without a will in NSW, and the Succession Act 2006 decides who inherits. Learn how intestacy, Letters of Administration, and statutory legacy work.

The short version: die without a will in NSW, and the Succession Act 2006 (NSW) decides who inherits. You don’t. The Supreme Court of NSW appoints an administrator, usually the closest surviving relative, who applies for Letters of Administration and works through the statutory order set out in Chapter 4. That order starts with the spouse (a de facto partner counts), then reaches out through children, parents, siblings, and as far as first cousins before it gives up. An estate that runs out of eligible relatives passes to the Crown as bona vacantia.

Dying intestate in NSW isn’t a disaster. The formula’s blunt, though, and it’s particularly rough on blended families. The surviving spouse tends to walk away with the lion’s share, and the adult children from an earlier marriage split whatever’s left.

Key takeaways

• Die without a will in NSW, and Chapter 4 of the Succession Act 2006 takes over. Your spouse inherits the whole estate unless there are children from another relationship.
• The current NSW statutory legacy is $603,091.72 (29 January–29 April 2026). It’s indexed quarterly under s106.
• The estate doesn’t move until an administrator gets Letters of Administration from the Supreme Court of NSW. Bank accounts stay frozen. Property can’t be sold or transferred.
• If nobody on the statutory hierarchy survives, the estate passes to the Crown as bona vacantia. Less common than most people assume.

What does it mean to die intestate in NSW?

“Intestate” is the legal label for dying without a valid will at the date of death. Plenty of people believe they have a will and actually don’t. Section 12 of the Act revokes an earlier will on marriage unless the will was made in contemplation of that marriage, which trips up a lot of people who wrote their will young and remarried later in life. A will that can’t be found after death has the same practical effect as no will at all.

When that happens, Chapter 4 of the Succession Act 2006 (NSW) takes over. The hierarchy doesn’t care about intention. Only a valid will, properly signed and witnessed, overrides the intestacy rules. Verbal instructions, however clear, don’t count.

Who inherits if there’s no will in NSW?

The statutory order runs in strict priority. Each category has to be exhausted before the next one’s reached, and once the Court finds an eligible relative, the process stops there.

1. Spouse — married, de facto, or registered partner
2. Children — with grandchildren stepping up where a child has predeceased
3. Parents
4. Brothers and sisters — half-blood included, with nieces or nephews stepping up where a sibling has predeceased
5. Grandparents
6. Aunts and uncles — first cousins step up where an aunt or uncle has predeceased
7. The Crown — only if none of the above survive

To inherit under the order, a relative has to outlive the deceased by 30 days. A child in utero at the date of death is recognised as long as they’re born alive and survive the 30-day window afterwards.

Does a de facto partner inherit if there’s no will in NSW?

Two years of a continuous de facto relationship before the date of death qualify the surviving partner as a spouse for intestacy purposes. So does having a child together, regardless of how long the couple had been together. Eighteen months with no child isn’t enough, even where the commitment was obvious to everyone who knew them. S105 operates as a bright line, and the Supreme Court has no discretion to stretch it based on how serious things looked.

Disputed de facto claims are the norm rather than the exception in intestacy matters. Adult children of the deceased stand to lose their share if the de facto partner succeeds, so they have every incentive to contest the relationship. The Supreme Court weighs the same statutory factors that the Federal Circuit and Family Court apply in de facto property matters. Cohabitation and financial interdependence do most of the heavy lifting in practice. Public recognition of the relationship matters too, but in our experience, it matters less than the legislation’s wording suggests. The surviving partner carries the evidentiary burden from start to finish, and pulling together that evidence years after the fact isn’t quick.

What happens if you’re separated but not divorced?

A separation doesn’t end a marriage as far as the Succession Act is concerned. Only a divorce order or a properly drafted binding financial agreement does the legal work of severing a spouse’s entitlement. Living apart for years and building a new life with someone else doesn’t do it; the married spouse stays entitled under Chapter 4 until something legally operative changes the position.

The scenario we see most often looks like this. A client separates in their mid-fifties and sets up with someone new within a year. Divorce never happens because it’s expensive, and everything practical has been sorted out. They die seven years later without a will. The new partner, by then of six years’ standing, qualifies as a de facto spouse under s105. The legal wife, last seen across a kitchen table in 2018, is also still a spouse under the Act. Both can claim. Untangling what each is entitled to usually means a distribution agreement between them or a distribution order from the Supreme Court of NSW, and by the time the legal costs of either route are paid, a meaningful chunk of what was being fought over is gone.

A separation isn’t an estate plan. It takes a will to actually rearrange who inherits.

What’s the statutory legacy in NSW, and when does it apply?

The statutory legacy is a fixed sum that the surviving spouse receives before the rest of the estate gets divided. It only applies where the deceased leaves a spouse and children from someone else.

For deaths between 29 January and 29 April 2026, the legacy is $603,091.72. It’s indexed quarterly to CPI under the formula in s106 of the Act. An administrator who hasn’t paid the legacy within 12 months of death is liable for interest on the unpaid balance from the first anniversary of death onwards.

In a blended family, the Act splits the estate like this. The spouse takes the personal effects, plus the statutory legacy, plus half of whatever’s left after those are paid out. The remaining half of the residue goes to the children from the other relationship, shared equally between them.

On a $1 million estate, the spouse walks away with roughly $800,000, and two adult children from a first marriage share $200,000 between them. Where the estate’s smaller, say $700,000, the children effectively get nothing, because the legacy alone consumes most of what’s there. That outcome shocks people. Adult children from a first marriage who assumed the estate would split evenly are usually the most surprised. Second spouses come a close second, for the opposite reason; they didn’t realise the Act was going to hand them quite that much. A properly drafted will, in blended families, often one structured with a testamentary trust holding the children’s share, sidesteps the formula entirely.

What happens to the house if you die without a will in NSW?

A home held as joint tenants passes automatically to the surviving joint owner. It never forms part of the estate, so the intestacy rules don’t touch it. That’s how most couples with a family home end up. The survivor takes the whole property, and the statutory hierarchy has no role.

Property held in the deceased’s sole name, or as tenants in common, is different. It falls into the estate and gets distributed under Chapter 4. A surviving spouse has a preferential right under ss114–121 of the Act to acquire the home from the estate, but the right has conditions and notice periods attached, and it doesn’t apply where there’s more than one spouse. Where keeping the home matters, this is the mechanism to understand before distributions get locked in.

What if there’s more than one spouse?

It happens. A surviving legal wife and a surviving de facto partner can both meet the definition of spouse at the same time. Part 4.2 of the Act handles the scenario through one of three routes: a written distribution agreement that the spouses sign between themselves, a distribution order from the Supreme Court, or an equal default split under ss125(2)–(3) where the notice conditions are satisfied.

Multiple-spouse intestacies rarely resolve quietly. The legal wife and the de facto partner seldom agree on how the shares should go, and the administrator ends up caught in the middle.

Do stepchildren inherit if there’s no will in NSW?

A stepchild who was never legally adopted doesn’t inherit under NSW intestacy rules. Twenty years of raising the child don’t bridge the gap. The Act works off a legal relationship, not a lived relationship.

Where the stepchild was financially dependent on the deceased, a family provision claim under Chapter 3 of the Act is sometimes available. That’s a separate application from the intestate distribution itself, and it’s heavily fact-specific. The Court has to be persuaded that the deceased had a moral obligation to provide for the stepchild and failed to meet it. A close practical relationship helps. It doesn’t win the application on its own.

How do Indigenous intestate estates work in NSW?

Part 4.4 of the Act recognises that the default hierarchy doesn’t always match how an Aboriginal or Torres Strait Islander community handles estates. It allows for a different approach, distribution under the customary laws and practices of the deceased’s community, rather than Chapter 4’s standard order.

An administrator, or anyone claiming under customary law, can apply to the Supreme Court of NSW for a distribution order. The application has to be filed within 12 months of the grant and before the estate is fully distributed, and it needs to include a proposed scheme for distribution. In the Estate of Mark Edward Tighe [2018] NSWSC 163 remains the leading decision on these applications, with Sackville AJ setting out the eleven matters the Court will typically want addressed before making the order.

For an Aboriginal or Torres Strait Islander family where the statutory order won’t produce the right outcome, Part 4.4 is the mechanism that opens the door to a different one.

What happens if you die with no family in NSW?

A lot less often than people assume. The statutory order reaches as far as first cousins — most people have someone on that list, even if they haven’t spoken to them in decades.

Where there’s genuinely nobody, the estate passes to the Crown as bona vacantia, roughly “ownerless goods.” That’s the rule behind the common belief that the government takes everything when there’s no will, though the belief overstates reality. True bona vacantia cases are uncommon.

Part 4.5 of the Act gives the State a discretion to provide for someone the deceased would reasonably have been expected to provide for. The typical profile is a long-term carer, or a child raised but never formally adopted. You apply to the Crown Solicitor with a detailed account of the relationship and the financial dependency. Then you wait. The State decides on its own timeline. Plenty of these applications succeed. None of them succeeds quickly.

Who administers the estate when there’s no will?

No will, no executor, so someone has to step in and run the estate. That person’s the administrator. They get their legal authority the same way an executor does, just through a different court order: a grant of Letters of Administration from the Supreme Court of NSW.

Whoever has the greatest entitlement to the estate is the right person to apply. In most cases, that’s the surviving spouse. Without a spouse, it usually falls to an adult child, and if there’s more than one adult child and they can’t agree, the Court has to work out who gets the role. Those fights add months to the timeline, and legal costs no one planned to spend.

The role mirrors an executor’s. The administrator has to gather and value the estate’s assets, settle debts and funeral expenses, and then distribute the residue under Chapter 4. Simple on paper. Messier in practice, particularly where the estate includes property and the beneficiaries don’t agree on what should happen to it. The administrator answers to the beneficiaries rather than to the Court directly, which is why administration bonds exist. The bond protects a beneficiary who isn’t a party to the application, usually a minor child, from an administrator who doesn’t do the job properly.

Where no beneficiary in the family is prepared to take the role on, the NSW Trustee and Guardian can be appointed instead. The Trustee’s commission runs to roughly 4–6% of the estate value, which is a meaningful cost the family sidesteps when someone competent steps up.

How do you apply for Letters of Administration in NSW?

You apply to the Supreme Court of NSW, Probate Division. The application has to include:

• Summons for Letters of Administration
• Affidavit of applicant for administration — identifying the deceased’s eligible relatives with birth, marriage and death certificates, setting out the searches made for a will, and confirming the applicant’s entitlement to apply
• Inventory of property — all assets and their values at the date of death
• Notice of intended application — published on the Supreme Court’s online registry at least 14 days before filing
• De facto evidence — a detailed affidavit proving the relationship, where the applicant is a de facto partner

Where there’s a minor beneficiary whose entitlement needs protecting, an administration bond may be required. Commercial bonds aren’t readily available in the NSW market at the moment, so a personal guarantee from a surety is the usual workaround.

Timeframes

A straightforward application takes two to four months from filing to grant. Where the estate’s contested, whether that’s a challenged de facto claim or a blended family dispute over entitlements, six to twelve months is more realistic. Sometimes longer.

Costs 

Supreme Court filing fees scale with the value of the estate. Add a publication fee for the notice of intended application, plus solicitor’s costs if you use one. An uncomplicated administration typically falls in the $3,000–$7,000 range. The moment there’s a family provision claim or a contested de facto application on top, the costs climb well past that.

What if a will might exist but can’t be found?

Before the Court will grant administration, it wants evidence of a proper search for a will. That covers the obvious places first: the deceased’s home and papers, any solicitor known to have acted for them, and bank safe deposit boxes. Two more formal steps are required. The Will safe register at the NSW Trustee and Guardian has to be checked. And a notice has to run in the Law Society Journal and in the local press for a set period before the application is filed.

The affidavit supporting the application has to set out exactly what was done. A will that surfaces after administration’s been granted doesn’t automatically unwind what’s already happened, but it can force the grant to be revoked. Distributions already made may need to be reversed. The administrator can end up personally liable for costs the estate no longer has the money to cover.

If there’s a genuine chance a will exists somewhere, find it before you file.

Where intestacy meets family law

Most of the intestacy disputes that come through our Sydney practice aren’t really about probate. They’re about family structure.

A couple separates. One dies before the divorce order comes through. Both the new partner and the legally married spouse are, legally, in the running.

Eighteen months into a de facto relationship, six months short of the two-year threshold, one partner dies. The survivor isn’t a spouse under the Act, and the estate passes them by entirely.

A second marriage, two adult children from a first one, a modest estate. The statutory legacy alone consumes most of what’s there, and the children share a residue that isn’t much.

A stepchild raised from age four but never legally adopted sits outside the statutory order. A family provision claim under Chapter 3 is the only route back in.

None of these is unusual. They’re what a rigid statutory formula produces when it meets a family that doesn’t fit the default template. And the questions that actually decide how the estate ends up distributed, whether a de facto claim stands up to challenge, whether an informal separation has done enough legal work to sever a spouse’s entitlement, have a family law dimension that a wills-and-estates solicitor on their own may not always weigh the same way.

The cleaner answer, for anyone still alive to give it, is a will.

This article is general information about intestacy in NSW and isn’t legal advice. Every estate turns on its facts. For advice on your situation, particularly where a separation, a de facto relationship, or a blended family is in the picture, book a confidential consultation with our Sydney team.