Paul Evans
10 October 2022

Dying without a will, contested estates, and intestacy in NSW

Paul Evans


Tel: 02 9233 9084

Mob : 0466 889 754


Estate Planning, Trusts, Probate and Estate Litigation

Charities and Not-For-Profits

Dispute Resolution

What do Martin Luther King Jr, Amy Winehouse, Pablo Picasso, Stieg Larsson, Abraham Lincoln, Prince and now actress Anne Heche have in common?

All are examples of famous individuals who died without leaving a valid will. 

Anne Heche died tragically after crashing her car into a house in Los Angeles.  

Anne’s son Homer and her ex-James Tupper are now entangled in a legal dispute over who should control the actress’ estate as she has not left a will.  The dispute will result in substantial legal fees and an uncertainty that may last for many years causing distress to all concerned.


When a person dies without leaving a valid will, he or she is said to have died “intestate.” Intestacy has a number of consequences for that person’s assets and the family and friends left behind.

If you die intestate, your assets will not necessarily be distributed the way you want. The intestacy rules decide who gets what.

The intestacy rules in New South Wales prioritise your spouse, then children, then parents and grandparents, then siblings. 

The problem with this is that this division may not be what you would have chosen. 

When a person dies leaving a will, the process for taking control of the assets in the estate is straightforward. The executor will apply for a grant of Probate and distribute the assets in accordance with the terms of the will.

Where a person has died without a will, the family members left behind do not automatically get to deal with the estate assets. 

A person who is entitled to part of the estate must apply to the Supreme Court to be appointed administrator of the estate. That person must prove their relationship to the deceased. In the case of a de facto relationship, for example, the surviving de facto spouse must provide evidence that the relationship was indeed de facto. Other family members of the deceased person may be entitled to apply and so may need to provide written consent to allow the applicant to become the administrator. In practical terms, this can mean months or even years spent tracking down long lost relatives. In our experience, disputes often arise.

The process can be long, tiring, and upsetting.  It is also unnecessary.


You should make a will.

Your will should appoint a person as your executor and say how you want your estate distributed. 

Many people delay making a will out of superstition, concern about the cost, or – most commonly – because they assume that they will have plenty of opportunity to do so in the future.

Intestacy is rarely planned. The notable people we mentioned in the introduction all died suddenly.  

The benefits of having a will made – not sometime in the future, but now – are clear. While intestacy does not affect you, it makes a difficult time much harder for those you leave behind. 

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