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WILLS AND ESTATE
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Losing someone close is never easy. But when a loved one passes away without leaving a valid will, confusion, family conflict, and an overwhelming legal process often compound the grief. The law describes a person who dies without a valid will as having died intestate – and the consequences can be significant.
If someone dies without a will in Queensland or New South Wales, the law steps in to decide who inherits their estate. These rules – known as the intestacy rules – follow a fixed statutory formula that pays no regard to personal relationships, family dynamics, or the deceased’s actual wishes. The result is often not what anyone expected, and sometimes not what anyone wanted.
This article explains what happens when someone dies without a will, who is entitled to inherit under the intestacy rules in QLD and NSW, and critically why having a properly drafted will and estate plan is the only reliable way to protect your loved ones.
The term intestate simply means dying without a valid will. Intestacy can arise in several ways:
It is more common than most people realise. Many Australians either do not have a will at all, or have a will they never updated to reflect changes in their circumstances, marriage, divorce, the birth of children, or the acquisition of significant assets.
When someone dies leaving a will, the person named as executor applies to the Supreme Court for a Grant of Probate. When there is no will, there is no executor. Instead, a family member or other eligible person must apply to the Supreme Court for Letters of Administration – a court order that authorises them to administer the estate as an administrator.
The administrator has the same practical duties as an executor: collecting the deceased’s assets, paying debts and funeral expenses, and distributing what remains to the people entitled under the intestacy rules. However, the administrator has no flexibility to depart from those rules – they are fixed by statute.
Our estate administration team regularly assists families through the Letters of Administration process, including preparing the application and managing the distribution of the estate.
In Queensland, the intestacy rules are set out in Schedule 2 of the Succession Act 1981 (Qld). The rules distribute the estate based on who survives the deceased, following a strict hierarchy.
If the deceased is survived by a spouse – including a de facto partner of at least two years – and no children, the spouse inherits the entire estate.
If the deceased is survived by a spouse and children who are all children of that relationship, the spouse again inherits the entire estate. The children receive nothing under the intestacy rules in this scenario.
This is where intestacy becomes more complex – and more likely to cause conflict. If the deceased is survived by a spouse and also by children from a different relationship, the estate is split:
This can produce unexpected outcomes – particularly where the family home forms the bulk of the estate and the surviving spouse cannot afford to buy out the children’s interest.
If there is no surviving spouse, the deceased’s children divide the estate equally. If a child has predeceased the deceased but left their own children, those grandchildren step into their parent’s share.
If there is no surviving spouse or children, the estate passes through a hierarchy of other relatives in this order: parents, siblings (or their children if deceased), grandparents, aunts and uncles, and then first cousins. If no eligible relatives can be found, the estate passes to the Queensland Government as bona vacantia – effectively, to the Crown.
The hierarchy above may seem straightforward, but in practice it can produce results the deceased never intended. A distant relative you barely knew may inherit ahead of a close friend, a long-term carer, or a stepchild who was treated as family. This is why a valid will is always preferable to relying on the statutory formula.
In New South Wales, the intestacy rules are governed by Chapter 4 of the Succession Act 2006 (NSW). The framework is broadly similar to Queensland but with some important differences.
The surviving spouse inherits the entire estate.
The surviving spouse inherits the entire estate.
The law splits the estate between the spouse and the deceased’s children from another relationship. The spouse receives:
The children from the other relationship share the other half equally.
All children divide the estate equally. As in Queensland, a predeceased child’s share passes to their own children.
The estate passes through a similar hierarchy to Queensland: parents, siblings, grandparents, aunts and uncles, first cousins. If no eligible relatives are found, the estate passes to the NSW Government.
The intestacy rules follow a rigid formula. They cannot account for the realities of modern family life – and this is where they most often fall short.
For families in the Coolangatta–Tweed corridor, it is common to hold assets in both Queensland and New South Wales, property, bank accounts, business interests. When someone dies intestate with assets in multiple states, the law of the state where each asset is located applies to that asset. This means two different intestacy regimes may govern the estate simultaneously, adding complexity to the administration.
At HQF Lawyers, we act for families on both sides of the border. If you need assistance with a deceased estate – whether there is a will or not – our estate administration team can guide you through the process in both jurisdictions.
If you have recently lost a loved one who did not leave a will, here are the immediate steps to take:
Disclaimer
The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice. Readers should seek legal advice about their specific circumstances.
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In Queensland and New South Wales, a de facto partner is recognised as a ‘spouse’ for intestacy purposes — but only if the relationship meets the legal definition. In Queensland, this generally requires a relationship of at least two years, or a registered relationship, or a relationship where there is a child. If the de facto relationship does not meet the threshold, the partner may receive nothing under the intestacy rules. Having a valid will is the only reliable way to protect a de facto partner’s entitlement.
Yes. Even where a person dies intestate, eligible persons – including spouses, children, stepchildren, and some dependants – may make a family provision application to the Supreme Court if they believe they have not been adequately provided for. The Court has discretion to vary the distribution of the estate. However, this process is costly and stressful, and is never as efficient as a properly drafted will.
Property held as joint tenants passes automatically to the surviving owner by the right of survivorship – it does not form part of the intestate estate and is not subject to the intestacy rules. Property held as tenants in common, however, does form part of the estate and will be distributed according to the intestacy rules.
Not necessarily. Many people store their wills with their solicitor, in a safe deposit box, or with the Queensland Law Society’s Will Register. Before assuming a person died intestate, it is worth conducting a thorough search – checking with their solicitor, financial institutions, and any will registry the deceased may have used. If someone locates a will after the Court has granted Letters of Administration, the situation becomes significantly more complex and you should obtain legal advice immediately.