How Is An Estate Distributed Without A Will?

When someone dies without creating a valid rule, the ‘rules of intestacy’ decide who will get the deceased’s estate, and the portion they will be given.

How the estate divided depends on which State the deceased lived in.

Here is a simplified version of the rules of intestacy in each State.

This summary does not account for complex situations such as having multiple partners (e.g. married to someone and also in a de-facto relationship)

NSW

• A partner and no children, or children from the relationship with the current partner, the partner receives the whole of the estate.
• A partner and children from another relationship, the current partner receives the personal property, $350,000 and 50% of the remainder of the estate. The other 50% go to the children from previous relationship.
• Children only, the estate is divided equally between all children (excluding step children)
• No spouse or children, the parents of the deceased receive the whole estate.
• No spouse, children, or parent, the deceased’s siblings (full and half) will receive the whole estate

Find out more about if someone dies without a Will in NSW.

QLD

• A partner and no children, or children from the relationship with the current partner, the partner receives the whole of the estate.
• A partner and child/children from another relationship, the current partner receives the personal property, $150,000 and 50% of the remainder of the estate, with the other 50% going to the child/children from previous relationship.
• Children only, the estate is divided equally between all children (excluding step children)
• No spouse or children, the parents of the deceased receive the whole estate.
• No spouse, children, or parent, the deceased’s siblings (full and half) will receive the whole estate.

Read more

SA

• A partner and no children, or children from the relationship with the current partner, the partner receives the whole of the estate.
• A partner and child/children from another relationship, the current partner receives the personal property, $100,000 and 50% of the remainder of the estate, with the other 50% going to the child/children from previous relationship.
• Children only, the estate is divided equally between all children (excluding step children)
• No spouse or children, the parents of the deceased receive the whole estate.
• No spouse, children, or parent, the deceased’s siblings (full and half) will receive the whole estate.

Read more

VIC

• A partner and no children, or children from the relationship with the current partner, the partner receives the whole of the estate.
• A partner and children from another relationship, the current partner receives the personal property, $451,909 and 50% of the remainder of the estate. The other 50% goes to the children from previous relationship.
• Children only, the estate is divided equally between all children. If any child has died before the deceased (or within 30 days), then that deceased child’s children will receive their share.
• No spouse or children, the parents of the deceased receive the whole estate
• No spouse, children, or parent, the deceased’s siblings (full and half) will receive the whole estate.

Read more (see sections 72J onwards)

WA

Household goods

The surviving spouse or de facto partner is automatically entitled to all household goods.

Only a partner (no other family)

If there is only a spouse or de facto partner – that is no children, parents, siblings, nieces/nephews etc, then, the partner will be entitled to the entire estate.

Partner & children

If the estate is valued at less than $50,000, the entire estate will pass to the partner.

If it’s over $50,000, the partner will get the first $50,000 (including 5% interest on that amount). The remainder is divided between the partner and children as follows:

• 50/50 if there is only one child
• one-third to the partner, two-thirds to the children if there is more than one child.

Children but no partner

The children will receive the entire estate, in equal shares.

If a child died beforehand

If any child died beforehand, their share will go to their surviving children (e.g. the nieces/nephews).

No children but a partner and other family

If the estate is valued at less than $75,000, the partner will receive the entire estate.

If the value is over this amount, then the partner will receive the first $75,000 (plus interest), and 50% of the remainder.

The remaining 50% is split as follows:

• If this remaining amount is less than $6,000, or if there are no surviving siblings, the parent/s will be entitled to the whole amount, (split evenly if both are alive).
• If the value is more than $6000, the parent/s will receive the first $6000, plus 50% of the remainder. The siblings, (or sibling’s children if a sibling has died beforehand) will be entitled to 50% of whatever is left, in equal shares.
• If neither of the parents are alive, then the siblings (or the sibling’s children if a sibling has died beforehand), will receive the entire 50%, in equal shares.

No partner, no children

Parents will receive the first $6,000 of the estate, plus 50% of the remainder, in equal shares. The other 50% will be split evenly between the siblings, or their children if they have died beforehand.

If there’s only parents (no partner, children, sibling or niece or nephew), then the parents will receive your entire estate, in equal shares.

If there’s only siblings (or their children if a sibling has died) and no partner, children or parents, then your siblings (or their children) will be entitled to the entire estate.