If someone dies without a valid will in New South Wales, they die intestate. Their estate is then divided by a fixed statutory formula under Chapter 4 of the Succession Act 2006 (NSW) — not according to what they said they wanted, and not according to what the family agrees is fair.
Where a New South Wales estate has to be split between a surviving partner and children, the partner does not simply get half. They first take a fixed sum — the statutory legacy — and only what is left over is divided.
In New South Wales that figure is $611,387.84, set by section 106, applying to deaths between 30 April 2026 and 29 July 2026. It is adjusted quarterly against the Consumer Price Index. It applies only where you leave a spouse AND children who are not that spouse's children.
Why this is worth understanding: the equivalent figure is wildly different across Australia. Queensland's is a flat $150,000 that has never been indexed. Victoria's is $591,390. New South Wales sits above $600,000 and moves every quarter. The same family, with the same assets, can see a surviving partner receive four times as much or four times as little purely because of the state they lived in.
For a modest estate this single number often decides the entire outcome — frequently whether the family home has to be sold to pay the children their statutory share.
Intestacy works down a statutory list. The estate passes to the first category with a living member, in this general order:
The exact fractions, and the treatment of a spouse alongside children, are set by statute and have technical detail this page cannot cover for every family shape. The list above is the shape of the rules, not a calculation you should rely on.
Dying intestate does not just change who inherits — it changes how hard the estate is to deal with. Someone must volunteer to apply for letters of administration, often the person least able to face paperwork at the time. Banks and land registries will not release anything until that grant issues. The delay is commonly many months, and every complication — a missing relative, a disputed de facto claim, an unclear asset — adds more.
Meanwhile the mortgage still falls due, and the family may not be able to touch the money that would pay it.
A valid will lets you name exactly who receives what, provide for stepchildren and unmarried partners, leave something to a friend or charity, appoint an executor you trust, and record your wishes about guardianship. It replaces the statutory formula with your actual intentions.
Often, yes — in New South Wales a surviving spouse generally takes the whole estate where all the children are also that spouse's children. But it is not automatic: children from an earlier relationship change the result.
They can — a de facto partner may qualify as a spouse — but the relationship has to be established, which can mean providing evidence about your private life to a court.
The first $611,387.84 under section 106, plus personal effects, before the remainder is divided. This amount is adjusted quarterly against the Consumer Price Index and the figure quoted here applies to deaths between 30 April 2026 and 29 July 2026. Check the current figure before relying on it.
The estate ultimately passes to the NSW Crown. A will is the only way to prevent that.
Not freely. The administrator is legally obliged to distribute according to the statutory formula. Departing from it generally requires formal steps and can create tax and legal consequences.
More than one set may be relevant, which makes an intestate estate considerably more complex. Get advice.
Then the estate is generally dealt with as an intestacy, unless the court exercises its dispensing power under section 8 of the Succession Act 2006 (NSW) to admit the document.