What Happens If You Die Without a Will in NSW?
Published: 25 May 2026 | Last Updated: 25 May 2026
It's one of those things most of us intend to get around to: making a will. We know we should, but it feels like something we can do later: when things settle down, when we have more time, when life feels less full.
The problem is that 'later' doesn't always arrive. And when someone dies without a will, the consequences for the people they leave behind can be significant.
Dying ‘intestate’
When someone dies without a valid will, they die 'intestate.' In New South Wales, this means their estate isn't distributed according to their wishes, because no wishes have been legally recorded. Instead, it's distributed according to a fixed formula set out in the Succession Act 2006 (NSW).
That formula doesn't know that you always intended the farm to go to your eldest daughter, or that you and your partner had an understanding about the house. It just follows the rules.
Who gets what?
The intestacy rules in NSW set out a strict order of priority for who inherits. In general terms:
• If you're survived by a spouse or de facto partner and no children, your estate goes entirely to your spouse/partner
• If you're survived by a spouse and children from that relationship, your spouse is entitled to the whole estate
• If you have children from a previous relationship, the distribution becomes more complex: your current spouse/partner and your children both have claims, and the division may not reflect what anyone would have chosen
• If there's no surviving spouse or partner, the estate passes to children in equal shares
• If there are no children either, it moves further up the family tree: to parents, then siblings, and so on
If you're not sure whether probate is required in your situation, that's a good question to bring to an estates lawyer early.
What about superannuation?
It's worth knowing that superannuation doesn't automatically form part of your estate. It passes according to your binding death benefit nomination with your fund. If there's no valid nomination, the trustee of the fund has discretion about who to pay it to. This is a common source of surprise for families, and worth reviewing separately from your will.
What about jointly owned assets?
Assets held as 'joint tenants', which is how many couples hold their home, pass automatically to the surviving owner, regardless of any will or intestacy rules. So your will (or the lack of one) may not affect those assets at all.
The simplest thing you can do
Make a will. It doesn't need to be lengthy or complicated. It just needs to exist, to be properly signed and witnessed, and to actually reflect what you want.
If you've been putting it off, we're happy to have a conversation - no pressure, no jargon. We work with families across Orange and Central West NSW and we can usually get a will in place fairly quickly once we understand your circumstances.
By Jessica Spence | Wills and Estates | Orange NSW
This article is general information only and does not constitute legal advice. Your circumstances are unique, if you have questions about your situation, please get in touch for advice specific to you.