What Happens If You Pass Away Without a Will

Have you ever wondered what would happen to your assets if you passed away without a will? It’s a question that many people put off answering, but planning ahead can make a real difference for loved ones left behind. In Australia, if someone dies without a valid will, they are considered to have died intestate. When this happens, a specific legal process is followed to determine how assets are distributed. While this system is designed to be fair, it may not always reflect your personal wishes or family structure.

In this blog, we’ll explore what it means to die intestate, how assets are distributed under intestacy laws, and why understanding estate law on the Central Coast is important for protecting your financial intentions and the future of your family.

What Is Intestacy?

Intestacy occurs when a person dies without a legally valid will. A will may be considered invalid if it hasn’t been properly signed or witnessed or if the person lacked the mental capacity to create it. Partial intestacy can also occur—this happens when a will exists but doesn’t cover all assets or beneficiaries, or if the named executor is unable to act, for example, if they have passed away or the executor can not carry out the duties, i.e., they have died.

In these situations, the distribution of the estate is managed according to a specific set of rules under each state’s succession laws. In New South Wales, the Succession Act 2006 (NSW) outlines how assets are to be distributed when no will is in place. The law follows a prescribed order of relatives who may inherit, starting with the spouse and children.

Who Administers the Estate?

Without a will to name an executor, an application needs to be made to the court to appoint someone—usually a close family member or the person with the greatest entitlement to the estate. This person must apply for Letters of Administration, which gives them legal authority to manage the deceased person’s assets, pay debts, and distribute what remains according to intestacy laws.

This process may take longer than probate (the court’s formal recognition of a will), and the person handling the estate must comply with specific legal and administrative requirements.

How Assets Are Distributed Without a Will

The distribution of assets depends on who survives the person who has passed away. The law recognises a hierarchy of relationships to determine who inherits.

Here’s how distribution is typically structured:

If there is a spouse (married or de facto) and no children:

The entire estate generally goes to the spouse.

If there is a spouse and children from the same relationship:

The spouse may receive the whole estate, depending on the asset structure and value.

If there is a spouse and children from a different relationship:

The estate is usually divided between the spouse and the children.
The spouse may receive personal items, a statutory legacy (a set monetary amount), and half of the remaining estate, while the other half is divided among the children.

If there is no spouse, but there are children:

The estate is divided equally between the children.
If a child has predeceased the parent, their share may pass to their children (the deceased’s grandchildren).

If there is no spouse or children:

The estate passes to parents, then siblings, nieces and nephews, grandparents, and more distant relatives in a specific order defined by law.

If there are no living relatives:

The estate may eventually pass to the state under a process known as bona vacantia. This is rare, but it can happen when no eligible beneficiaries are found.

Special Considerations for Property & Assets

Dying without a will can complicate the distribution of certain assets, particularly when ownership is shared or financial arrangements are complex. Some important considerations include:

Real Estate: Property owned as joint tenants automatically passes to the surviving owner, while property held as tenants in common is subject to intestacy rules.
Superannuation: Super is not automatically included in the estate and may be distributed according to the trustee’s discretion unless a binding nomination is in place.
Life Insurance: Policies with nominated beneficiaries may bypass the estate entirely.
Joint Bank Accounts: These often pass directly to the surviving account holder.

Understanding how these assets are treated can help ensure the right structures are in place to align with your wishes.

Why a Will Matters

A will allows you to make clear, legally recognised decisions about what should happen after your death. It gives you the opportunity to:

Appoint a trusted person as executor.
Distribute your estate in the way that best reflects your personal and family situation.
Make specific gifts to individuals or charities.
Appoint guardians for your children if they are under 18.
Provide for blended families or non-traditional relationships that intestacy laws may not consider.

Without a will, these decisions are made according to legal defaults that may not account for personal dynamics or future planning.

Common Misunderstandings About Intestacy

There are several assumptions that can lead people to delay making a will:

“My spouse will automatically receive everything.”
This is not always true, especially if there are children from previous relationships or jointly owned property.
“I don’t have enough assets to need a will.”
Even modest estates can create confusion or conflict if wishes are not clearly stated.
“My family will sort it out fairly.”
Disagreements can arise even in close families, particularly if the legal default doesn’t align with expectations.

Preparing a will helps avoid uncertainty and can reduce stress for loved ones at a difficult time.

How to Plan for Future Security

While no one can predict the future, taking steps to plan ahead may make a difference in how your estate is managed. Some helpful approaches include:

Preparing a legally valid and updated will.
Keeping a secure list of assets, liabilities and key contacts.
Reviewing superannuation nominations and account structures.
Considering enduring powers of attorney and guardianship arrangements.
Seeking legal advice to address complex family arrangements or business ownership.

These actions are not just about distributing assets—they’re also about protecting the people and responsibilities you care about.

Contact Us to Discuss Your Estate Planning Options on the Central Coast

At Linda Emery & Associates, we provide guidance across all areas of estate law on the Central Coast, supporting individuals and families who want to plan with clarity and care. If you’re considering your estate options or have questions about what may happen without a will, we welcome you to get in touch for practical advice tailored to your circumstances.

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