Intestacy Laws in NSW

What Does It Mean to Die “Intestate”?

A person is “intestate” if they die without a valid will, or if they leave a will that does not effectively deal with all of their property (section 102, Succession Act 2006 (NSW)). This is called partial intestacy — the will controls some assets, and the intestacy rules fill the gap for the rest.

A common misunderstanding is that an estate automatically passes to the NSW Government if there is no will. That is not correct. The Government (the Crown) only receives the estate as a last resort, if no eligible relative can be found at all.

Key terms explained

Term	Plain-English meaning
Intestate	A person who died without a valid will, or without a will that deals with all their property.
Issue	A person’s children, grandchildren, great-grandchildren and so on (not just their immediate children).
Spouse	Under section 104, a person married to the deceased, or in a “domestic partnership” with them, immediately before death.
Domestic partnership	Under section 105, a de facto relationship of at least 2 years, a de facto relationship that produced a child, or a relationship registered under the NSW Relationships Register.
Statutory legacy	A fixed, CPI-indexed sum a spouse receives first, before the estate is split with children from another relationship (section 106).
Letters of Administration	A Supreme Court of NSW order authorising a named person (the administrator) to collect, manage and distribute an intestate estate.
Next of kin	The closest surviving relative(s) under the intestacy order — not simply “family” in the everyday sense.

What Happens After a Death With No Will — Step by Step

1. Confirm there really is no will. Check with the deceased’s solicitor, bank safe deposit box, home safe, and the NSW Trustee & Guardian, who may hold a will lodged for safekeeping.
2. Identify who is legally entitled to apply to administer the estate, using the intestacy order below. This is usually the spouse, or the children if there is no spouse.
3. Obtain the death certificate and prepare an inventory of the deceased’s assets and liabilities in NSW.
4. Apply to the Supreme Court of NSW for a grant of Letters of Administration. A Notice of Intended Application is generally published online first, giving creditors and other interested parties an opportunity to respond.
5. Once the grant issues, the administrator collects the assets, pays debts and funeral/administration expenses, and distributes what remains strictly according to the intestacy rules — not according to what the family believes the deceased “would have wanted”.
6. If no eligible relative applies, the NSW Trustee & Guardian may apply for the grant as of right (NSW Trustee and Guardian Act 2009 (NSW), section 23).

Who Inherits Under NSW Intestacy Law?

Chapter 4 of the Succession Act 2006 (NSW) sets out a strict order. The estate moves to the next category only if there is nobody entitled in the category before it.

Order	Family situation	Who inherits	Legislative basis
1	Spouse, no children (issue)	Spouse receives the whole estate	s 111
2	Spouse, and all children are also children of that spouse	Spouse receives the whole estate	s 112
3	Spouse, and some/all children are from another relationship	Spouse receives personal effects, the statutory legacy plus interest (if unpaid after 1 year), and half the remainder; the other half is shared equally among all the children	s 113
4	No spouse, but children survive	Children (or their descendants, if a child died first) share the estate equally	s 127
5	No spouse or children	Parents share the estate equally	s 128
6	No spouse, children or parents	Siblings (or their children) share the estate equally	s 129
7	No spouse, children, parents or siblings	Grandparents share the estate equally	s 130
8	No relatives in categories 1–7	Aunts and uncles (or their children) share the estate equally	s 131
9	No eligible relative at all	The estate passes to the NSW Government (bona vacantia); the State has discretion to provide for dependants or other persons with a moral claim	s 136–137

Note: “Spouse” includes a de facto or registered partner who meets the section 104–105 definition — married and de facto partners are treated the same way. If there is more than one spouse (for example, a separated-but-not-divorced spouse and a de facto partner), sections 122–125 divide the spouse’s share between them.

In practice, identifying every eligible relative can be complex in blended or estranged families, and disputes between potential beneficiaries are not uncommon. If your family situation does not fit neatly into one of the categories above, specific advice is recommended before assuming how the estate will be divided.

The 30-day survivorship rule

Under section 107, a relative only inherits if they survive the deceased by at least 30 days. If they die within that window, the estate is distributed as if they had died before the intestate — which avoids assets passing through two estates in quick succession.

The Statutory Legacy: What a Spouse Receives in a Blended Family

Where the deceased leaves a spouse and children from a different relationship (row 3 above), the spouse does not automatically receive the whole estate. Section 106 sets a base statutory legacy of $350,000, indexed to the Consumer Price Index (CPI) every quarter. Because the figure changes quarterly and depends on the exact date of death, treat any dollar figure you see — including in this article — as indicative only and confirm the precise amount that applied on the relevant date before relying on it.

Example only — figures are illustrative, not a current quote	Amount
Estate value after debts, funeral and administration costs	$1,000,000
Spouse’s personal effects	Transferred separately, not counted in the split
Statutory legacy to spouse (indicative recent quarterly figure, subject to change — confirm current CPI-adjusted amount)	approx. $600,000–$610,000
Remaining balance	approx. $390,000–$400,000
Spouse’s share of remainder (50%)	approx. $195,000–$200,000
Children’s share of remainder (50%, split equally)	approx. $195,000–$200,000

If the legacy is not paid within 12 months of the death, the spouse is also entitled to interest on the outstanding amount until it is paid in full (section 106(1)(b)).

Why this catches blended families out

Many people assume a surviving spouse automatically keeps everything, including the family home. Where there are children from an earlier relationship, that is not how the formula works — and if the estate is not much larger than the statutory legacy, very little may be left for the children at all. If the result of the intestacy formula leaves a spouse, child or other eligible person without adequate provision, they may be able to apply for a family provision order under Chapter 3 of the Succession Act 2006 (NSW), subject to strict time limits. This is a separate process from intestacy and depends heavily on individual circumstances — you should obtain advice specific to your situation.

Intestacy Advice for Hornsby and the Upper North Shore

Caspian Legal assists clients across Hornsby and surrounding Upper North Shore suburbs — including Waitara, Asquith, Wahroonga, Turramurra, Thornleigh, Pennant Hills, Normanhurst and Berowra — with intestate estates and applications for Letters of Administration. Applications for Letters of Administration are made to the Supreme Court of NSW (Probate Registry) in Sydney, not the local court, and the process is the same regardless of which NSW suburb the deceased lived in. What differs is the practical side: identifying local assets (such as a Hornsby property), locating NSW-based next of kin, and getting timely, face-to-face advice close to home.

Applying for Letters of Administration

If you believe you are entitled to apply, keep the following in mind:

• Time limit: apply within 6 months of the date of death. After that, the Supreme Court generally requires an affidavit explaining the delay.
• Priority to apply generally follows the same order as who inherits — spouse first, then children, then other next of kin.
• A Notice of Intended Application is published online before the grant is made, giving creditors and other interested parties the chance to respond.
• If no eligible person applies, or there is a dispute, the NSW Trustee & Guardian may be appointed, or the estate can be referred to it for administration.
• If assets are held in more than one state or country, a further “reseal” application may be needed in each additional jurisdiction.

Document Checklist Before You See a Solicitor

Document	Why it’s needed
Original death certificate (or funeral director’s interim certificate)	Required to prove death and identity for the Court application
Results of a genuine search for a will	Confirms intestacy and who NSW Trustee & Guardian or the deceased’s bank may be holding
List of assets and estimated values (property, bank accounts, super, shares, vehicles)	Needed to identify what falls within the intestate estate and whether probate/administration is required
List of debts and liabilities (mortgage, credit cards, loans)	Debts are paid before any distribution to family
Birth, marriage or relationship certificates for the applicant and other relatives	Proves entitlement under the intestacy order and eligibility to apply
Details of any children from a previous relationship of the deceased	Directly affects whether the statutory legacy formula applies
Identification (driver licence or passport) for the proposed administrator	Required by the Supreme Court registry

What Not to Do

• Do not distribute any assets, sell property, or close accounts before a grant of Letters of Administration is made — doing so without authority can create personal liability.
• Do not assume a surviving spouse automatically inherits everything if there are children from an earlier relationship — the statutory legacy formula applies instead.
• Do not ignore the 6-month time limit for applying — delay can complicate the process and may require an affidavit of explanation.
• Do not rely on verbal promises the deceased made (“Mum always said the house was mine”) — these are not enforceable under the intestacy rules.
• Do not assume overseas or interstate assets are automatically covered — additional applications (a “reseal”) may be required.
• Do not overlook a possible family provision claim if the intestacy formula leaves a dependant without adequate support — strict time limits apply.

Frequently Asked Questions

Does my de facto partner inherit if we weren’t married?

Potentially, yes. Under sections 104–105, a de facto partner is treated the same as a married spouse for intestacy purposes, provided the relationship had existed for a continuous period of at least 2 years, or produced a child, or was formally registered.

Do stepchildren automatically inherit?

No. Unless they were legally adopted by the deceased, stepchildren are not automatically “issue” for intestacy purposes and do not inherit under the default order.

What if my parent died without a will and I don’t know if there are other children?

Part of the administrator’s role is a genealogical search to identify every eligible relative before distributing the estate. This can take time, particularly for blended or estranged families.

Can the estate really go to the government?

Yes, but only as a last resort, if no eligible relative in any of the categories in sections 111–131 can be identified. Even then, the State has a discretion to provide for a dependant or other person with a moral claim on the estate.

Is a homemade or unsigned document treated as a will?

Not automatically. A document must generally meet the formal signing and witnessing requirements in the Succession Act 2006 (NSW) to be a valid will, although the Supreme Court has a limited discretion to recognise informal documents in some circumstances. If in doubt, get advice — don’t assume.

How long does administering an intestate estate usually take?

It varies with the complexity of the estate and the family situation, but a straightforward application can take several months from filing to grant, with further time needed to call in assets and finalise distribution.

Can family members agree to change how the estate is split?

In some cases, all eligible beneficiaries who are adults with capacity can agree to a different distribution (a deed of family arrangement), but this needs careful legal and tax advice and is not appropriate in every case.

What Happens in an Initial Consultation With Caspian Legal

If you are dealing with an intestate estate, a first consultation with Caspian Legal typically involves:

1. Reviewing the family situation and any documents you already have (death certificate, asset list, relationship details).
2. Explaining, in plain English, where you sit in the intestacy order and what that means for your entitlement.
3. Outlining the Letters of Administration process, likely timeframe and next steps.
4. Identifying whether a family provision claim may be relevant if the formula produces an unfair result for a dependant.

If a family member has died without a will, Caspian Legal can explain your position under NSW intestacy law and help you apply for Letters of Administration. Call 02 7264 3200 or visit caspianlegal.com.au to arrange a consultation. Caspian Legal is located at 22-28 Edgeworth David Ave, Sydney NSW 2077, and assists clients across Hornsby and the Upper North Shore.

Contact options: Phone 02 7264 3200 | Online enquiry form at caspianlegal.com.au | Book a consultation at our Hornsby office, 22-28 Edgeworth David Ave, Sydney NSW 2077.