What to Know When Someone Dies Without a Will

4 minute read

Published on: December 29, 2023 Edited on: September 5, 2026

Losing a loved one is a difficult experience, and it can become even more challenging if they pass away intestate (without a valid will). In this article, we'll explore the key aspects of intestacy and provide guidance for those facing this situation.

The Procedures for Settling an Estate Without a Will 

The procedure for settling an estate when there is no will depends on the value of the assets of the deceased.

If the deceased left a small estate, the next of kin may be able to deal with certain assets without applying to the High Court for formal authority. Since September 2025, the prescribed threshold for certain types of small-estate assets has increased from $15,000 to $40,000. However, the threshold applies to particular types of assets rather than to the total value of the estate, and different limits can apply depending on the asset involved. Real estate generally requires formal administration.

Where formal authority is required, the procedure is as follows:

• Decide who will be the administrator (an equivalent role to that of the executor when there is a will). The administrator is generally a person entitled to apply under the rules governing intestate estates.
• Obtain legal authority for the estate’s administrator. This involves applying to the High Court for letters of administration. The Court will consider the circumstances of the estate and the applicant's entitlement before granting the authority.
• Administer the estate. This includes handling paperwork, closing accounts, paying any outstanding debts and taxes, and making funeral arrangements. If a coffin is required, consider choosing from our quality collection.
• Distribute the estate. The rules for distributing an intestate estate are explained below.

The Rules Governing Asset Distribution for Intestate Deaths

According to Section 77 of the Administration Act 1969, which sets out the rules for asset distribution in the event of an intestate death, the estate is to be divided as follows: 

• If there is a spouse or partner, but no parents or children: The spouse receives the entire estate.
• If there is a spouse or partner and children, the spouse will receive the personal effects (such as furniture, jewellery, housewares), $155,000 (with interest from the date of death), and one-third of the remaining estate. The children will inherit the remaining two-thirds, divided equally among them.
• In cases involving stepchildren or a blended family, the entitlement of stepchildren to the estate depends on factors like their age, relationship to the deceased, and financial dependence on the deceased. To fully understand stepchildren's entitlements, it is recommended to consult a lawyer or trustee corporation.
• If there is a spouse or partner and parents, but no children: the spouse will receive the personal effects, $155,000 (with interest from the date of death), and two-thirds of the remaining estate. The deceased's parents will inherit the remaining one-third, divided equally between them.
• If there are children but no spouse or partner: the children will inherit the entire estate, with equal shares for each child.
• In the absence of a spouse, partner, or children, but with surviving parents: the entire estate will be divided equally among the parent or parents.
• If there is no spouse, partner, children or surviving parents, but there are surviving siblings: the entire estate will be divided equally among the siblings.

Spousal eligibility and exceptions

If the deceased was separated from their spouse or partner at the time of death, their entitlement to the estate can depend on the circumstances of the separation and whether a separation order or other legal arrangement was in place. Because separation can also affect relationship-property rights, anyone in this situation should seek legal advice.

If the deceased had both a spouse or civil union partner and a qualifying de facto partner, the surviving partners may share the portion of the estate that would otherwise have passed to the spouse or civil union partner under the intestacy rules. The way the estate is divided depends on the circumstances and the other surviving relatives.

A de facto relationship generally needs to have lasted for at least three years for the surviving partner to have an automatic entitlement under the intestacy rules. However, a de facto partner whose relationship lasted less than three years may still be entitled to inherit in certain circumstances. This can apply where the couple had a child together or where the de facto partner made a substantial contribution to the relationship, and the Court is satisfied that denying an entitlement would result in serious injustice.

Determining whether a relationship qualifies as a de facto relationship can depend on factors including the nature and duration of the relationship, the degree of commitment between the parties, the extent to which they shared a life together, and their financial and domestic circumstances.

For more information, read the official guidance from the Ministry of Justice or consult a lawyer or trustee corporation if you need advice about a particular estate.