In short: if you die without a will in NSW (known as dying “intestate”), your estate is divided by a fixed legal formula under the Succession Act 2006 — which may not reflect your wishes. A will lets you decide who inherits, who raises your children, and who manages your estate.
Around half of Australian adults don’t have a valid will. Many assume that if something happens to them, their assets will simply pass to their partner or children. In New South Wales, it’s not that simple.
Who inherits when there’s no will
When someone dies intestate in NSW, their estate is distributed according to a fixed formula set out in the Succession Act 2006 (NSW). In broad terms:
- If you have a spouse or de facto partner and no children (or only children of that relationship), your partner generally receives the whole estate.
- If you have children from another relationship, your partner receives your personal belongings, a set amount known as a “statutory legacy” (adjusted over time), and half of the remainder — with the rest shared among your children.
- If you have no partner, your children share the estate equally. If you have no children, it passes to parents, then siblings, then wider relatives.
- If no eligible relatives can be found, your estate can ultimately pass to the State Government.
| Your situation | Who generally inherits |
|---|---|
| Partner, no children (or only children of that relationship) | Your partner receives the whole estate |
| Partner + children from another relationship | Partner gets personal effects, a statutory legacy, and half the remainder; children share the rest |
| Children, no partner | Children share equally |
| No partner or children | Parents, then siblings, then wider relatives |
| No eligible relatives | The estate can pass to the State |
Common myths
“My partner will automatically get everything.” Not necessarily — especially in blended families, where children from a previous relationship are also entitled to a share. “We’re de facto, so it doesn’t matter.” A de facto partner may have to prove the relationship, which can be stressful and uncertain at the worst possible time. “My family will just sort it out.” Without a will, they must apply to the Supreme Court for “letters of administration” before they can deal with your estate — more time, cost and paperwork during grief.
The practical burden on your family
Dying without a will doesn’t just risk your assets going to the wrong people. It leaves your loved ones to navigate a rigid legal process, often with delays and extra legal costs, at a time when they are least equipped to deal with it. And crucially, without a will you cannot nominate a guardian for your minor children — a court will decide who raises them.
The good news: it’s easily avoided
A properly prepared will puts you in control — of who inherits, who looks after your children, and who administers your estate. It’s a straightforward step that saves your family enormous stress. If you already have a will, it’s worth reviewing it every few years or after any major life change (marriage, divorce, a new child, buying property, or starting a business).
Speak with our Estate Planning team
Our lawyers, including two Accredited Specialists in Wills & Estates, help families across the Sutherland Shire and Sydney. Call (02) 9523 5535 or enquire online.
This article is general information only and is not legal advice. Laws change and every situation is different — please seek advice specific to your circumstances.
