Intestacy Rules NSW: Who Inherits When There's No Will

Dying without a will in NSW does not mean the government takes the estate. But it does mean the law decides who gets what — not the deceased, not the family, and not whoever the deceased assumed would inherit. The distribution follows a fixed formula under the Succession Act 2006 (NSW), and that formula can produce outcomes most families do not expect.

How the Intestacy Formula Works

The Act sets out a strict priority order. The estate goes to the first category of eligible relatives that applies:

1. Spouse or de facto partner
2. Children
3. Parents
4. Siblings
5. Grandparents
6. Aunts and uncles

Each category only inherits if there is nobody in the category above. No spouse, no children, no parents, no siblings: the estate passes to grandparents. No grandparents: aunts and uncles. If no eligible relatives exist at all, the estate eventually escheats to the Crown — but this is genuinely rare.

Simple Case: Spouse and Children from the Same Relationship

When a person dies leaving a spouse (or de facto partner) and children who are all children of that same relationship, the spouse receives the entire estate. Children do not share in the estate while a surviving spouse is alive under this scenario.

This is often what people would have wanted — and it is the most common outcome when families are straightforward. But "straightforward" means one spouse, all children from that relationship, and no prior partners in the picture.

The Blended Family Problem

Blended families produce a very different result, and it catches many families by surprise.

When the deceased leaves a spouse but also has children from a prior relationship, the estate does not simply go to the surviving spouse. Instead, the Succession Act 2006 splits the estate three ways:

• The spouse receives all personal effects (furniture, jewellery, vehicles, personal belongings)
• The spouse receives the statutory legacy — a fixed dollar amount, CPI-adjusted
• The spouse receives 50% of whatever remains after the personal effects and statutory legacy are set aside
• The children from the prior relationship receive the other 50% of the remainder

As of mid-2026, the statutory legacy is $611,387.84. It started at $350,000 in 2005 and has been indexed to CPI since then.

What this means in practice: if the estate is worth, say, $900,000 net of personal effects, the spouse takes $611,387.84 plus 50% of the remaining $288,612.16 (roughly $144,306), for a total of about $755,694. The children from the prior relationship share the other $144,306.

This can feel deeply unjust to surviving spouses who expected to receive everything — particularly when the assets include the family home and the spouse needs to continue living there.

When the Estate Is Worth Less Than the Statutory Legacy

If the estate's value falls below the statutory legacy amount, the surviving spouse takes the entire estate. The children from prior relationships receive nothing in this scenario.

Given that the statutory legacy currently sits above $611,000, this provision protects surviving spouses in modest estates. A home worth $550,000 with minimal other assets would pass entirely to the spouse.

If you are currently administering an estate in NSW — whether or not there is a will — the Estate Settlement Guide for New South Wales covers every step from obtaining a grant to final distribution.

No Spouse: Children Inherit

When there is no surviving spouse or de facto partner, the estate passes equally to the deceased's children. Each child receives an equal share regardless of age.

If a child predeceased the deceased but left their own children (grandchildren of the deceased), those grandchildren generally step into their parent's share — a doctrine called per stirpes distribution.

No Spouse, No Children: Further Down the Priority Order

The estate moves down the priority list:

• Both parents survive: they share equally
• One parent survives: that parent receives everything
• No parents: estate goes to siblings (half-brothers and half-sisters have equal standing)
• No siblings: estate goes to grandparents
• No grandparents: estate goes to aunts and uncles

Half-blood relatives generally inherit equally with whole-blood relatives under NSW intestacy rules, though the details depend on which part of the family tree you are looking at.

Letters of Administration: The Legal Step Required Without a Will

When someone dies without a will, there is no executor. Someone must be appointed to administer the estate, and that appointment happens through the Supreme Court of NSW in the form of Letters of Administration.

The applicant is typically the closest next of kin — the surviving spouse, or an adult child if there is no spouse. The court has discretion about who it appoints, but it follows the intestacy priority order as a guide.

The application process uses the same NSW Online Registry portal (onlineregistry.lawlink.nsw.gov.au) used for probate. The applicant must provide:

• Evidence of the death
• Evidence of their relationship to the deceased
• An inventory of estate assets and their values
• A statement confirming the deceased died without a valid will

Once Letters of Administration are granted, the administrator has the same powers as an executor and must follow the intestacy distribution rules — not their own preferences.

De Facto Partners Have the Same Rights as Married Spouses

A de facto partner is treated identically to a married spouse under NSW intestacy law. This includes same-sex de facto partners. The key is establishing that a genuine de facto relationship existed — courts look at factors like cohabitation duration, financial interdependence, shared property ownership, and the nature of the commitment.

If there is any dispute about whether a de facto relationship existed, it must be resolved before the estate can be distributed. This is another area where getting proper legal advice is worth the cost.

The Indigenous Kinship Provision

Part 4.4 of the Succession Act 2006 contains a specific provision for distribution of estates of Aboriginal or Torres Strait Islander persons who die without a will. Under this provision, the court can distribute the estate according to the customary laws and traditions of the deceased's community, if it is satisfied that it would be appropriate to do so.

This reflects recognition that Western-style nuclear family hierarchies do not map onto all communities' understanding of kinship, obligation, and inheritance. Families in this situation should take legal advice from someone with experience in both estates law and Indigenous customary matters.

Why Intestacy Matters for Estate Administration

Every executor and administrator needs to understand the intestacy rules, even when there is a will. A partial intestacy — where the will fails to cover some assets — is more common than people realise. A will might not name a beneficiary for assets acquired after the will was made. A beneficiary might predecease the testator with no gift-over clause. Part of the estate ends up intestate and must follow the statutory rules.

Understanding how intestacy intersects with the estate's specific assets and family structure is one of the more complex tasks an executor faces. If you are working through that now, the Estate Settlement Guide for New South Wales provides a structured walk-through of the full process, including how to handle partial intestacies and contested distributions.

See more New South Wales guides →