When someone dies without a Will, it can create uncertainty about what happens next.
Questions often include:
- Who is responsible for managing the estate?
- Who has the authority to act?
- Who inherits, and in what order?
This situation is known as intestacy. And it changes the process in several important ways.
Important: This is a general guide, not legal advice. Intestacy rules vary across Australian states and territories. For advice specific to your situation, speak with a solicitor.
There Is No Executor
When a valid Will exists, it names an executor; the person authorised to manage the estate.
Without a Will, no executor is appointed. Someone must instead apply to the court for authority to act.
Until that authority is granted, the estate generally cannot be formally administered.
Letters of Administration Are Required
The legal process for establishing authority without a Will is called Letters of Administration.
This is granted by the Supreme Court in the relevant State or Territory, and gives the applicant similar powers to an executor.
Who can apply is set out in legislation – typically a spouse or de facto partner first, then adult children, then other relatives. Where more than one eligible person exists, agreement isn’t always straightforward.
The application process takes time, and most formal steps cannot proceed until it’s resolved.
The Estate Is Distributed According to Law, Not Wishes
Without a Will, there are no recorded wishes to follow.
Instead, the estate is distributed according to intestacy legislation, a set legal order that determines who inherits and in what proportion.
While the structure varies by state, it generally follows this hierarchy:
- A spouse or de facto partner is usually first in line
- Children may receive a share, depending on the circumstances
- If there is no immediate family, the estate may pass to parents, siblings, or more distant relatives
- If no eligible relatives are identified, the estate passes to the state government
This order may not reflect what the deceased intended and that’s one of the more difficult aspects families face.
Intestacy Rules Vary by State and Territory
Each Australian State and Territory has its own intestacy legislation.
The differences affect:
- The share a spouse receives relative to children
- How de facto relationships are recognised
- The treatment of blended families
- Thresholds and proportions in the distribution formula
What applies in Victoria may not apply in Queensland. The state where the deceased was ordinarily resident generally determines which rules govern the estate.
The Process Is More Complex Than With a Will
Intestacy adds steps that wouldn’t exist if a Will were in place:
- Establishing who is eligible to apply for administration
- Making the court application for Letters of Administration
- Identifying all potential beneficiaries under the relevant intestacy rules
- Distributing according to a legal formula rather than documented wishes
Each of these takes time and the absence of a Will often means the absence of other important documents too.
Why This Often Feels Harder Than Expected
People managing an intestate estate often expect the process to be similar to having a Will just without the document.
In practice, they encounter:
- A court process before anything can begin
- Legal rules that determine outcomes rather than family agreement
- More potential for disagreement between family members
- Longer timelines across the board
How This Fits Into the Bigger Picture
Intestacy affects not just who inherits, it affects when the process can start, who has authority to act, and how long everything takes.
👉 See also:
- What Is Probate in Australia
- Common Mistakes After Someone Dies in Australia
- Why It Can Take Months to Settle an Estate in Australia
Managing an Intestate Estate
The additional steps involved in intestacy – the court application, the legal distribution rules, the extended timelines – don’t replace the standard estate administration process. They sit on top of it.
That means more to coordinate, more to track, and more places where things can stall.
👉 Our checklist accounts for intestacy – mapping the additional steps alongside the standard process so nothing is missed and the sequence is clear from the start.
Final Thought
Not having a Will doesn’t stop the process but it does change how it begins, who can act, and how outcomes are determined.
Understanding that early means fewer surprises as the process unfolds.