One of the most common misconceptions we encounter is the belief that a spouse or partner will automatically inherit everything when someone dies. In New South Wales, the law does not work that way — and the consequences of dying without a valid Will can be significant for the people you leave behind.
What Does "Intestate" Mean?
When a person dies without a valid Will, they are said to have died "intestate." Their estate is then distributed according to the rules set out in the Succession Act 2006 (NSW) — a rigid legal formula that applies regardless of your personal wishes, your relationships, or the individual circumstances of your family members.
How Is the Estate Distributed?
The intestacy rules in NSW distribute your estate in a strict order of priority:
- Spouse or de facto partner only (no children): The entire estate passes to the surviving spouse or de facto partner.
- Spouse and children from that relationship: The entire estate passes to the surviving spouse.
- Spouse and children from a previous relationship: The spouse receives a "statutory legacy" (currently around $530,000), household chattels, and half of the remainder. The other half goes to the children.
- No spouse, children only: The estate is divided equally among all children.
- No spouse and no children: The estate passes to parents, then siblings, then more distant relatives in order of priority.
- No relatives: The estate passes to the NSW Government.
What Are the Problems with Intestacy?
The intestacy formula creates real problems in many common situations:
- Blended families: A de facto partner may receive less than expected if the deceased had children from a previous relationship. Conversely, an estranged biological child may inherit ahead of a long-term partner who was not legally married to the deceased.
- Unmarried couples: A partner who was not legally married and cannot establish a de facto relationship may receive nothing, regardless of how long the relationship lasted.
- Specific wishes ignored: If you wanted to leave something to a friend, a charity, or a particular family member, intestacy cannot accommodate that.
- Delays and cost: Administering an intestate estate often takes longer and costs more, as the court must appoint an administrator rather than an executor named in a Will.
Can Family Members Contest the Distribution?
Yes. Even under intestacy, eligible persons — including spouses, children, and former spouses — may make a family provision claim if they feel they have not been adequately provided for. This adds further cost and delay to an already complex process.
What About Superannuation?
Superannuation is not automatically part of your estate and is not governed by your Will. It is paid according to your fund's trust deed and any binding death benefit nomination you have made. Without a valid nomination, your super fund trustee has discretion over who receives your superannuation — which may not align with your intentions.
The Solution: A Properly Drafted Will
A valid Will allows you to:
- Decide exactly who receives your assets and in what proportions
- Appoint an executor you trust to carry out your wishes
- Provide for stepchildren, friends, or charities who would not receive anything under intestacy
- Create testamentary trusts to protect assets for vulnerable beneficiaries
- Minimise the risk of family disputes and contested estate litigation
At James Papas Solicitors, your first consultation is free. We have been helping Parramatta families prepare Wills and plan their estates for nearly 50 years — and we can come to you at home or in hospital if needed.
Need legal advice? James Papas Solicitors offers free first consultations for all Wills & Estate Planning matters. Our offices are in Parramatta and we serve all of Western Sydney. Learn more about our Wills & Estate Planning services → or contact us today.