Every year, tens of thousands of Australians die without a valid will. Whether they intended to get around to it or simply never thought it would be relevant, the result is the same: the state steps in and decides who gets what.
This is called dying intestate, and it rarely produces the outcome families hoped for.
What Does Intestate Mean?
When you die without a valid will, you are said to have died "intestate." Each Australian state and territory has its own intestacy laws that determine how your estate is distributed. These laws follow a strict formula based on family relationships — and they cannot account for your wishes, your family's unique circumstances, or your relationships as you understood them.
Who Gets What Under Intestacy Laws?
The intestacy rules vary slightly by state, but the general hierarchy is:
- Spouse or de facto partner
- Children (including children from previous relationships)
- Parents
- Siblings
- More distant relatives
A few scenarios that often surprise families:
- Blended families: If you have children from a previous relationship, your current spouse may not inherit everything. Your estate could be split in ways you never intended.
- De facto partners: Recognition of de facto relationships has improved, but proving the relationship exists can add time and legal cost to an already difficult period.
- Unmarried partners: If you're not married and not in a recognised de facto relationship, your partner may receive nothing — regardless of how long you've been together.
- Estranged relatives: If you have no close relatives, distant family members you may never have met could inherit your estate.
- Close friends and charities: Without a will, you cannot leave anything to friends, non-biological family members, or charitable causes you care about.
What About Your Superannuation?
Your superannuation is generally not controlled by your will — it's controlled by a binding death benefit nomination (or, without one, by the trustee of your fund). If you die without a valid binding nomination, the trustee decides who receives your super, which may or may not align with your wishes or the intestacy rules.
This is one of the most common and costly surprises families face. A valid will and a binding superannuation nomination should be considered together as part of any estate plan.
The Legal and Financial Cost
Without a will, your family must navigate a process that is both slow and expensive:
- Your family must apply to the court for Letters of Administration — a process that can take months and cost thousands of dollars in legal fees and court costs.
- Assets may be frozen during this period, meaning your family cannot access funds to pay bills, cover funeral costs, or maintain the family home.
- If your estate is complex or relatives dispute the distribution, costs can escalate significantly — sometimes consuming a material portion of the estate itself.
The Emotional Cost
Beyond the financial and legal burden, the absence of a will often creates family conflict. Without clear written instructions, relatives — sometimes relatives who weren't close to you — have legal standing to make claims on your estate. Relationships that survived decades can be damaged in months by an estate dispute.
A will is one of the most considerate things you can leave your family. It removes ambiguity at exactly the moment when they have the least capacity to deal with it.
What Makes a Valid Australian Will?
A valid will in Australia must generally:
- Be in writing
- Be signed by you in the presence of two witnesses (who are not beneficiaries and not related to beneficiaries)
- Be signed by both witnesses in your presence
It should also appoint an executor — someone you trust to carry out your wishes — and clearly identify your beneficiaries and what each person is to receive.
A will drafted by an estate planning attorney ensures it is legally binding, unambiguous, and accounts for the specifics of your circumstances — including any superannuation, trust assets, or business interests.
When Should You Review Your Will?
A will is not a set-and-forget document. You should review and update yours after any major life event, including:
- Marriage or divorce (note: marriage automatically revokes a will in most Australian states)
- The birth or adoption of a child
- A significant change in your assets (property purchase, business acquisition)
- The death of a beneficiary or executor
- A move to a different state or country
Store It Where Your Family Can Find It
A will you can't find is almost as problematic as no will at all. Your executor needs to locate your original will quickly — often under significant time pressure. Storing your will in an inaccessible location, or failing to tell anyone where it is, can create the same delays a missing will would.
Custodium Vault gives you a secure, encrypted place to store your important documents and ensures your executor and trusted family members know exactly where to look when they need it.
The Bottom Line
Dying without a will means the law decides what happens to everything you've worked for. It means your family faces legal delays, potential court costs, and decisions made by a formula rather than by you.
A will is not expensive to prepare. An estate dispute is.
If you'd like to prepare or update your will, our estate planning team provides legal services to clients across all Australian states and territories, as well as international wills for assets held overseas. Request a confidential consultation to get started.