Who inherits if there is no will? Intestacy shares in NSW, Victoria, Queensland and WA

If someone dies without a valid will in Australia, their estate passes under the intestacy rules of the state or territory where they lived (land passes under the law of the place where it is). In all four large states a surviving spouse or partner takes the whole estate if there are no children. When there are children, the answer differs: in NSW and Victoria the partner takes everything if all the children are also the partner's children, but shares the estate if any child is from another relationship; in Queensland the spouse receives $150,000, the household chattels and one-half or one-third of the rest; in WA the spouse receives $472,000, the household chattels and one-third of the rest (for deaths from 30 March 2022). Without a spouse or children, parents, then siblings, then more distant relatives inherit, and if there is nobody the estate goes to the state.

These rules apply to what is in the estate. Jointly owned assets and super paid by nomination are dealt with separately.

Side-by-side summary

Situation	NSW	Victoria	Queensland	WA
Spouse or partner, no children	Partner takes all	Partner takes all	Spouse takes all	Spouse takes all if no parents, siblings or their children; otherwise $705,000 + chattels + half of the rest
Partner and children, all children are also the partner's	Partner takes all	Partner takes all	$150,000 + chattels + 1/2 (one child) or 1/3 (more children); children share the rest	$472,000 + chattels + 1/3; children share 2/3
Partner and children, some not the partner's	Partner: personal effects + statutory legacy + half of the rest; children share the other half	Partner: personal chattels + statutory legacy + half of the rest; children share the other half	As above	As above
Children, no partner	Children equally	Children equally	Children equally	Children equally
No partner or children	Parents, then siblings, then grandparents, aunts and uncles, cousins	Similar order	Parents, then next of kin	Parents and siblings in set shares, then wider family
No relatives entitled	The state (bona vacantia)	The state	The Crown	The state

The statutory legacy in NSW and Victoria is a fixed amount set by the legislation and adjusted for inflation, so it changes over time. Check the current figure with the state's public trustee or on the legislation website before calculating a share.

NSW: Succession Act 2006, Chapter 4

A spouse includes a husband or wife, and a de facto partner who lived with the deceased for at least 2 years or had a child with them.
If the deceased left a spouse and children who are all also children of that spouse, the spouse takes the whole estate.
If there is a child from another relationship, the spouse takes the personal effects, the statutory legacy (indexed) and half of the remainder. The children share the rest.
If there is more than one spouse (for example a separated wife and a later de facto partner), the Act provides for them to share, by agreement or court order.
The surviving spouse has rights to elect to acquire the home from the estate, within time limits.

Victoria: Administration and Probate Act 1958

Victoria rewrote its intestacy rules for deaths from 1 November 2017. The structure is similar to NSW: the partner takes everything unless the deceased had a child who is not the partner's child, in which case the partner takes the personal chattels, the statutory legacy (indexed each year) and half of the residue. A partner includes a spouse, a registered domestic partner, and an unregistered domestic partner who meets the Act's test.

Queensland: Succession Act 1981, Schedule 2

The Schedule is precise:

Spouse and no issue: the spouse (or spouses, sharing) takes the whole residuary estate.
Spouse and issue: the spouse takes $150,000 and the household chattels, plus one-half of what remains if there is only one child (or the issue of one child), otherwise one-third. The issue share the balance.
No spouse: issue, then parents, then next of kin, then the Crown.

A spouse includes a de facto partner, but a de facto partner qualifies only if the couple lived together for a continuous period of at least 2 years ending on the death (section 5AA).

Western Australia: Administration Act 1903, section 14

For deaths on or after 30 March 2022 (the commencement of the Administration Amendment Act 2022):

Spouse and issue: if the net estate (other than household chattels) is $472,000 or less, the spouse takes everything. Otherwise the spouse takes the chattels, $472,000 (with interest), and one-third of the residue; the issue share two-thirds.
Spouse, no issue, but a parent, sibling or nephew/niece: if the net estate is $705,000 or less, the spouse takes everything; otherwise the spouse takes the chattels, $705,000 and half of the residue.
The Minister can declare different sums by order (sections 14A and 14B), so check whether a declared sum applies.
De facto partners are dealt with in section 15.

Deaths before 30 March 2022 are distributed under the old, much lower amounts.

Worked example (illustrative)

Michael dies in Queensland without a will. He leaves his wife Anna and three adult children. After debts and costs, his estate is worth $750,000, plus household chattels.

Anna takes the chattels and $150,000.
Remainder: $750,000 − $150,000 = $600,000.
More than one child, so Anna takes one-third: $200,000. Total to Anna: $350,000 plus chattels.
The three children share $400,000: $133,333 each.

If Michael had lived in WA, Anna would take $472,000 + one-third of $278,000 ($92,667) = $564,667, and the children would share $185,333. In NSW or Victoria, if all three children were also Anna's, she would take all $750,000.

Letters of administration

With no valid will there is no executor. A person entitled to the estate, usually the spouse or an adult child, applies to the Supreme Court for letters of administration. The same court fees apply as for probate, and the court may require an administration bond or sureties in some cases. A public trustee can also apply. See probate fees by state.

Intestacy and family provision

The intestacy rules are fixed, but an eligible person can still claim a larger share through a family provision claim. A stepchild, for example, receives nothing on intestacy but may be eligible to claim in some states.

FAQ

Do de facto partners inherit on intestacy?

Yes, in all four states, if they meet the state's definition. In NSW and Queensland that generally means living together for at least 2 years, or (in NSW) having a child together. Proving the relationship may need evidence.

Does a separated spouse inherit?

A spouse who is separated but not divorced can still be treated as a spouse. Some states deal with competing claims between a separated spouse and a later partner. This is one reason to make a will promptly after separation.

Do stepchildren inherit without a will?

Not under the intestacy rules, unless they were legally adopted. They may be able to make a family provision claim.

What happens to super if there is no will?

Super does not pass under intestacy unless the fund pays it to the estate. Without a valid nomination the trustee chooses between dependants and the estate under the fund rules.

Sources

NSW Legislation — Succession Act 2006, Chapter 4
Victorian Legislation — Administration and Probate Act 1958
Queensland Legislation — Succession Act 1981, s 5AA and Schedule 2
WA Legislation — Administration Act 1903, ss 14, 14A, 14B and 15
State Trustees Victoria and Public Trustee of Queensland — intestacy information
Related: valid wills, de facto relationships and estates, overview