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Intestacy Rules - No Will - Probate Solicitors

LAWYER HELPLINE: ☎ 1800 455 260

The law regarding succession in Australia varies dependent on the state or territory. The regulations that determine succession are known as the 'intestacy rules'. If an individual dies without leaving a will then the law of the state or territory where the deceased was resident at the time of death determines what should happen to the assets that comprise the estate of the deceased person by application of the intestacy rules. There are moves to unify the law of succession throughout Australia in cases where there are assets but no will and a project initiated by the Standing Committee of Attorneys General aims to develop uniform succession law throughout Australia. Some states have recently enacted changes in their law to move towards uniformity however at the moment there are still some major differences in the intestacy rules dependent on location.


In general terms the intestacy rules determine a priority for succession in the event of there being no will with the usual priority as follows :-

  • spouses including de facto relationships
  • children (or issue of such children if a child predeceases the deceased)
  • parents
  • siblings
  • nieces and nephews
  • grandparents
  • aunts and uncles (or their children, if an aunt or uncles predeceases the deceased)


In most states the meaning of 'spouse' now includes a person who was in a domestic relationship with the deceased at the time of death, defined as a 'de facto relationship'. In determining the existence of a de facto relationship the courts will consider the period of the cohabitation, sexual relationship, living arrangements, financial arrangements, ownership of property and the couples presentation to the outside world.


Whilst the order of priority under the intestacy rules looks simple enough there are many potential complications that involve further sub-division of assets between spouses and children in some states and territories with the overriding ability of the dependants of the deceased at the time of death to take action for personal support from the assets of an intestate. Considering that over 50,000 people die without leaving a will in Australia it is not surprising that the intestacy rules are regularly tested in the law courts.

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LAWYER HELPLINE: ☎ 1800 455 260