What Happens If You Die Without a Will in Australia (Intestacy)?

Imagine losing a loved one only to discover they passed away without a will, leaving their estate tangled in a web of state-specific laws that don't reflect their true wishes. For many Aussies, this nightmare scenario—known as dying intestate—turns grief into prolonged family disputes and unexpected financial headaches. Understanding what happens if you die without a will in Australia is crucial for protecting your family and assets.

In this guide, we'll break down the intestacy rules across states and territories, highlight recent 2026 updates, and show why making a will is your best defence. Whether you're in Sydney, Melbourne, or Perth, knowing these rules empowers you to take control of your legacy today.

What Does Dying Without a Will Mean in Australia?

Dying without a valid will, or dying intestate, means the state steps in to distribute your estate according to rigid legal formulas. These rules prioritise spouses, children, and close relatives but vary significantly by state or territory where you lived at the time of death. Importantly, Australia has no federal inheritance tax, but capital gains tax (CGT) may apply to certain inherited assets like investment properties.

Your estate includes everything you own: property, bank accounts, superannuation (if not directed otherwise), cars, jewellery, and even digital assets like crypto—now explicitly recognised in estates. Jointly owned assets, like a family home with a spouse, typically pass directly to the survivor outside the estate.

Key Steps After Someone Dies Intestate

1. Apply for Letters of Administration: A family member must apply to the Supreme Court to become administrator.
2. Valuate the Estate: Pay debts, taxes, and funeral costs first.
3. Distribute Assets: Follow state intestacy rules—no personal wishes matter.

This process can take 12-18 months and cost thousands in legal fees, far more than drafting a simple will.

Intestacy Rules by State and Territory (2026 Updates)

Australia's intestacy laws are state-based, with thresholds adjusted for inflation and recent reforms. Here's a breakdown of current rules as of 2026.

New South Wales (NSW)

In NSW, if you have a spouse and children:

• Spouse gets personal belongings, a statutory legacy of around $500,000 (indexed), and half the residue.
• Children from any relationship share the other half.

No spouse or kids? Assets go to parents, then siblings, in order of kinship.

Victoria (VIC)

Victoria mirrors NSW closely: spouse receives personal chattels, $486,870 statutory legacy (2022 figure, indexed to ~$520,000 by 2026), plus 50% of the rest. Children share the balance. If the estate is under the threshold, the spouse takes everything.

Queensland (QLD)

Spouse gets household chattels plus $150,000, then one-third (33.3%) of the remainder. Children divide the rest.

Western Australia (WA) – Recent Changes

From 5 July 2025, WA increased legacies:

• Spouse with children: $546,000 (up from $501,000).
• Spouse no children: $815,500 (up from $748,500).
• Parents (no closer kin): $65,500.

These bi-annual reviews aim to reflect rising property values.

South Australia (SA)

If estate < $100,000, spouse gets all. Over that: spouse takes $100,000 plus personal property; remainder split equally with children. From 2025, aligns closer to others with $120,000 threshold.

Australian Capital Territory (ACT)

Spouse gets first $200,000 fully, then 33.3% of the rest if children exist.

Other States: Tasmania, Northern Territory

Tasmania: Spouse $350,000+ threshold before sharing. NT follows similar partner-first models. Always check your state's Supreme Court for exact 2026 figures.

State/Territory	Spouse Statutory Legacy (2026 Approx.)	Residue Share (with Children)
NSW/VIC	$500,000	50%
QLD	$150,000	33.3%
WA	$546,000	Balance after legacy
SA	$120,000	Equal split
ACT	$200,000	33.3%

Who Gets Nothing Under Intestacy Rules?

Step-children, unmarried partners (unless de facto for 2+ years with kids or 5+ years cohabitation in some reforms), friends, charities, or ex-partners get zilch unless legally challenged. Distant relatives only inherit if no closer kin exists—potentially leaving the state as last resort (Bona Vacantia).

"Without a valid Will, your estate is divided according to a rigid legal formula—one that rarely reflects your personal wishes."

Tax Implications for Intestate Estates in 2026

No inheritance tax in Australia, but watch CGT on assets sold post-death. Main residence exemption: Sell within 2 years of death CGT-free if it was the deceased's primary home. Superannuation and life insurance often bypass the estate if nominated beneficiaries exist.

Recent 2026 Reforms and Modern Families

2026 sees tweaks prioritising closer relationships, digital assets, and de facto partners. Courts gain flexibility for family needs, but fixed shares dominate. Unmarried partners still need wills for automatic rights.

Why You Should Make a Will Now: Practical Tips

Intestacy invites disputes—save your family stress with these steps:

• Draft a Will: Use online services or lawyers; costs $200-$1,000.
• Appoint an Executor: Trusted family or professional.
• Include Digital Assets: List crypto, online accounts.
• Review Every 5 Years: Or after marriage/divorce/kids.
• Consider Binding Death Benefit Nominations: For super.

Resources: Visit state Supreme Courts or services like Willfully for templates.

Take Control of Your Legacy Today

Dying without a will in Australia hands your hard-earned assets to state bureaucrats, not your loved ones. With varying rules and rising thresholds, the risks of disputes, delays, and tax pitfalls are real. Act now: grab a will kit, consult a lawyer, or use online tools tailored for Aussies. Your family will thank you—and you'll rest easy knowing your wishes prevail.