Do I Really Need a Will? The Risks of Dying Intestate in Australia

Dying Intestate in Australia

Dying Intestate in Australia… It’s a confronting question many Australians avoid: “Do I really need a will?” Whether you’re just starting a family, buying a home, or managing multiple assets, understanding the risks of dying intestate in Australia is critical. Without a valid will, the legal system—not you—decides how your estate is distributed, often with outcomes that may not align with your wishes.

In this article, we’ll break down what happens when someone dies without a will in Australia, the laws of estate distribution, and why it’s essential to have an estate plan in place—especially when children or complex assets are involved.

Do I Really Need a Will?
The Risks of Dying Intestate in Australia

What Does It Mean to Die Intestate?

In Australia, dying intestate means passing away without a legally valid will. According to the Australian Securities and Investments Commission (ASIC), this situation triggers the intestacy rules under each state or territory’s succession laws.

These rules determine how your estate is divided among surviving relatives—and can create complications if there are disputes, blended families, or business interests involved.

What Happens Without a Will?

The process of administering an intestate estate varies slightly by jurisdiction, but the general outcomes are similar.

Here’s what typically happens:

1. The State Decides Who Inherits

If no will exists, your estate is distributed according to a strict hierarchy outlined in local legislation. For example:

  • If you leave behind a spouse and no children, the spouse usually inherits everything.
  • If you leave a spouse and children, the estate is split, sometimes unequally.
  • If you have children from different relationships, the situation becomes even more complex.
  • If no eligible relatives can be found, your estate may go to the government (known as bona vacantia).

Refer to the Queensland Government – Intestacy Rules for a practical breakdown of how assets are split in one jurisdiction.

dying intestate Australia
dying intestate Australia

2. No Control Over Guardianship

Perhaps the most worrying risk of dying intestate is the lack of say in who raises your children.

Without a will naming a legal guardian, it’s left to the courts to decide who is best suited—based on their judgment, not yours.

3. Delays and Legal Costs

The intestacy process can be slow, often involving court applications for Letters of Administration instead of straightforward probate.

This can delay access to funds needed by your family and may lead to costly legal disputes, particularly where assets are shared across family trusts or companies.

4. Complications with Complex Assets

If you own a business, have international property, or are part of a blended family, intestacy can create legal and financial chaos.

For example:

  • Business succession may not be handled efficiently.
  • Superannuation and life insurance may go to unintended beneficiaries.
  • Stepchildren or de facto partners may need to prove their entitlement.

Estate Distribution Laws in Australia

Each Australian state and territory has its own laws governing intestate succession.

While they follow similar principles, the specifics can differ.

Here’s a general guide to what these laws consider:

Relationship Status Distribution Outcome
Spouse, no children Spouse receives entire estate
Spouse + children (same relationship) Spouse often receives all, or most of the estate
Spouse + children (different relationships) Estate is split, often causing tension
No spouse or children Parents, siblings, then extended family inherit
No living relatives Estate passes to the Crown

For a full breakdown, consult the NSW Trustee & Guardian Intestacy Flowchart.

Why Having a Will Matters—Especially for Families

If you have children, dependents, or non-traditional family arrangements, having a will becomes even more critical.

A well-prepared estate plan allows you to:

  • Nominate guardians for minor children
  • Decide how assets should be distributed (including to stepchildren or carers)
  • Establish trusts for education or support
  • Minimise the risk of disputes or challenges
  • Reduce tax burdens on beneficiaries

For families just starting out, Southern Cross Accounting’s guide on Estate Planning for Young Families offers an excellent overview of what’s involved, including advice on wills, powers of attorney, and superannuation nominations.

dying intestate Australia
dying intestate Australia

Common Misconceptions About Dying Intestate

Many Australians delay writing a will due to common myths. Let’s debunk a few:

  • “I don’t own much—it’s not worth it.”
    Even if you only have a car, superannuation, or life insurance, these need clear direction.
  • “Everything will go to my spouse anyway.”
    Not always. Children or other relatives may be entitled to a share.
  • “I made a will years ago—it’s done.”
    Life changes—marriage, divorce, new children—can invalidate or complicate an old will.

Steps to Avoid Dying Intestate in Australia

Taking action doesn’t need to be expensive or time-consuming.

Here’s a quick checklist:

  1. Make a Valid Will
    Use a qualified solicitor or estate planning professional to ensure it meets legal standards.
  2. Appoint Executors and Guardians
    Choose people you trust to carry out your wishes and care for your children.
  3. Review Superannuation Nominations
    Ensure they’re up-to-date and binding.
  4. Consider Powers of Attorney and Advance Care Directives
    Prepare for the possibility of incapacity, not just death.
  5. Regularly Review Your Plan
    Update after major life events—marriage, divorce, new children, or asset changes.

Conclusion

Dying intestate in Australia can have serious consequences, especially for families with young children or complex assets.

While it may feel like an uncomfortable task, writing a valid will and creating an estate plan is one of the most important steps you can take to protect your loved ones and avoid unnecessary legal complications.

If you’re unsure where to start, we recommend reviewing the Estate Planning for Young Families resource by Southern Cross Accounting.

It’s a practical, step-by-step guide tailored to Australian families.

Disclaimer For External Distribution Purposes

The information contained in this publication is for general information purposes only, professional advice should be obtained before acting on any information contained herein. The receiver of this document accepts that this publication may only be distributed for the purposes previously stipulated and agreed upon at subscription. Neither the publishers nor the distributors can accept any responsibility for loss occasioned to any person as a result of action taken or refrained from in consequence of the contents of this publication.

References & Sources