What does it mean to die intestate in NSW?

It means dying without a valid will, or with a will that does not dispose of all of your property. The estate (or the part not covered by a will) is then distributed under the fixed rules in Chapter 4 of the Succession Act 2006 (NSW), not according to your personal wishes. This is general information, not legal advice.

Does my spouse automatically get everything if I die without a will?

Not always. If you leave a spouse and no children, the spouse generally takes the whole estate. If your only children are also your spouse's children, the spouse generally takes everything too. But if you have children from another relationship, the spouse receives your personal effects, a statutory legacy and half of the remainder, while those children share the other half. Confirm your own position with a solicitor.

How much is the NSW statutory legacy?

Section 106 of the Succession Act 2006 (NSW) sets a base amount of $350,000, adjusted by the Consumer Price Index, so the amount payable depends on the date of death and rises over time. Published figures put it at roughly $611,000 for deaths in the quarter from late April to late July 2026, but it changes each quarter. Always check the current indexed amount for the relevant date.

Can a de facto partner inherit under intestacy?

Yes, where the relationship meets the statutory tests, broadly a de facto relationship that has lasted about two years or produced a child, or a registered relationship. Whether a relationship qualifies can be a contested question of fact, so legal advice is strongly recommended. This is general information only.

What happens to my superannuation if I die without a will?

Superannuation often passes outside your estate and is not distributed by the intestacy rules. It is usually paid by the fund trustee, frequently in line with a death benefit nomination and the fund's rules. Jointly owned property held as joint tenants also typically passes to the surviving co-owner by survivorship. Check your nominations and ownership arrangements.

Does the government take my estate if I have no will?

Only as a last resort. The estate passes through an order of relatives, children, parents, siblings, grandparents, aunts and uncles, and cousins, and only passes to the State of New South Wales (bona vacantia) if no eligible relative survives. The simplest way to keep control is to make a valid, up-to-date will.

Dying without a will in NSW: how intestacy decides who inherits

When there is no valid will, a statutory formula in the Succession Act 2006 (NSW), not your wishes, decides who receives your estate. This is general information, not legal advice.

Reviewed: 29 June 2026 · General information, not legal advice

> Please read first: this is general information, not legal advice. Intestacy can be complex and every estate is different. Nothing on this page is legal, financial or tax advice, and it may not reflect later changes to the law. For advice about your own situation, please consult a solicitor or contact NSW Trustee & Guardian or LawAccess NSW. Figures quoted here can change and should be confirmed against the current legislation.

What "dying intestate" means

A person dies "intestate" when they die without leaving a valid will, or where a will does not effectively dispose of all of their property (this is sometimes called a partial intestacy). When that happens in New South Wales, you do not get to choose who inherits. Instead, the estate is distributed according to a fixed order set out in Chapter 4 of the Succession Act 2006 (NSW).

This matters more than many people expect. Industry and government commentary suggests a large share of Australians, by some estimates around half and by others more than 60 per cent, die without a valid, up-to-date will. The ABC has reported on cases where families discovered a will written decades earlier, in one example back in the 1970s, only to find every named beneficiary had already died. An old will that no longer reflects reality can produce a similar outcome to having no will at all.

The statutory distribution order in NSW

Under the Succession Act 2006 (NSW), the estate passes down a set order of relatives. Only if no eligible relative exists does anything pass to the State. The following is a general summary of that order. The exact section references are given so you can check them.

Where there is a spouse

In the Act, "spouse" includes a married partner and, in defined circumstances, a de facto partner.

Spouse, but no children (no issue): the spouse is entitled to the whole estate (section 111).
Spouse, and the only children are also the spouse's children: the spouse is generally entitled to the whole estate (section 112). In other words, where the couple's children are shared, those children usually receive nothing directly, because the surviving spouse takes everything.
Spouse, and there are children from another relationship: the spouse is entitled to the deceased's personal effects, a statutory legacy (a set dollar amount, described below), and one half of anything left over. The deceased's children then share the other half between them (section 113). This is the situation that most often surprises blended families.

The statutory legacy figure

The statutory legacy is set by section 106 of the Act. Its base amount is $350,000, but it is adjusted using the Consumer Price Index, so the amount actually payable depends on the date of death and rises over time. As an illustration of scale, published calculations put the indexed legacy at roughly $611,000 for deaths in the quarter from late April to late July 2026, but this changes each quarter. Always check the current indexed amount for the relevant date of death rather than relying on a fixed figure, because the number quoted here will date.

Multiple spouses

NSW law allows for the possibility that a person leaves more than one spouse at the same time, for example a married partner and a separate de facto partner. Where that happens, the spouses share the entitlement that a single spouse would have received, either by agreement, by a distribution order, or in equal shares (sections 122 to 124).

Where there is no spouse

If there is no surviving spouse, the estate passes in this general order of priority:

Children (issue) in equal shares; if a child has died leaving children of their own, that branch generally takes the deceased child's share (section 127).
Parents (section 128).
Brothers and sisters (section 129).
Grandparents (section 130).
Aunts and uncles (section 131).
Cousins, who are now included as eligible relatives under the current Act if no closer relative survives.
The State (bona vacantia): only if the deceased leaves no eligible relative at all does the estate pass to the State of New South Wales (around section 136). The Crown has a discretion to make provision for certain people in some cases, but this is a last resort, not a normal outcome.

De facto partners and what counts as a relationship

De facto partners can inherit under the intestacy rules, but only where the relationship meets the statutory tests. In broad terms, the Act recognises a de facto relationship that has either continued for a period of two years, or has resulted in a child, as well as relationships that are registered under the relevant NSW scheme. Whether a relationship qualifies can be a contested question of fact, which is one reason advice matters here.

What intestacy does NOT cover

A common misconception is that the intestacy rules govern everything you own. They do not. Some significant assets typically pass outside the estate and are not distributed by the intestacy formula at all:

Superannuation is often paid by the fund trustee, frequently in line with a death benefit nomination, rather than forming part of the estate. How it is paid depends on the fund rules and any binding nomination.
Jointly owned property held as joint tenants usually passes automatically to the surviving co-owner by survivorship, regardless of the intestacy rules. Property held as tenants in common is treated differently.
Assets in some trusts or with their own beneficiary designations may also sit outside the estate.

The real consequences

Intestacy is a formula, not a reflection of your relationships or intentions. It can leave a long-term partner who does not meet the de facto test with nothing, split an estate in proportions no one intended, or pass an inheritance to an estranged relative while leaving out a close friend, carer or stepchild. It can also cause delay, because someone must apply to the Supreme Court of NSW for a grant of administration before the estate can be dealt with. A valid, current will keeps these decisions in your own hands.

Where Afterlife AI fits in

This next part is clearly separate from the legal information above, and it is not legal advice or a substitute for a will.

Intestacy decides the legal and financial side of what happens after death by a statutory formula. To control that side, the answer is a properly drafted will: see a solicitor, or contact NSW Trustee & Guardian. A will is the right tool, and Afterlife AI does not replace it.

Afterlife AI™ addresses a different, personal side that a will was never designed to carry: the person themselves. It is a consent-based digital legacy that helps preserve your voice, your stories and your values while you are alive, so the people you love still have something of *you*, not just a distribution of assets. Consent is given by you while living, it explicitly covers later playback by family, and it is locked at Executor Lock™ so it cannot be changed after death. Building your Persona is free to start, with no card required, and your data is Australian-hosted. A separate paid experience (Legacy from $14.99 per month, or Eternal from $29.99 per month) is where loved ones can spend time listening later; the personal legacy itself is created free. Sort the legal side with a will, and let Afterlife AI hold the human side.

Frequently asked questions

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A final reminder: this page is general information only and is not legal advice. The law and the indexed figures change, and your circumstances may differ. Please consult a solicitor, or contact NSW Trustee & Guardian or LawAccess NSW, before acting.

Sources

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