Administering an Intestate Estate

When a person dies without a valid will, they are 'intestate'. What happens to the assets of an intestate is governed by succession laws.

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Broad Summary

Most intestacy laws provide that the deceased's estate is shared between their surviving spouse (if any) and children, if any. If none of those survive, then parents and siblings will generally be next in line. If the deceased has no close family surviving then the assets may become property of the state.

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Example Jurisdiction - Queensland, Australia*

Queensland's intestacy rules are set out in Schedule 2 of the Succession Act 1981. They provide that an intestate estate is shared differently depending on whether the deceased is survived by a spouse.

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A spouse includes both a person to whom the deceased was legally married (even if separated) and a 'de facto' spouse (not married, but living as husband and wife). A deceased may have more than one spouse, simultaneously.

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If there is a surviving spouse, and there are no living children of the deceased, the spouse will receive the entire estate.

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If there are children, then the spouse will receive the first $150,000, the household chattels, and half of the residue (if one child survives) or one third of the residue if more than one child survives. The child/ren receive the balance - if more than one, in equal shares.

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If there is no spouse, the children share equally in the entire estate.

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If there are is surviving spouse or child, then the living parents (if any) will take, and if there are none of those then 'next of kin' (relatives, starting with brothers and sisters, nieces and nephews, then grandparents, then uncles and aunts and their children).

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If there are no next of kin then the Crown (the State), receives the assets.

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*Current as at April 2026 -these rules may change over time.

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Laws of Intestacy change by Location

The laws governing intestacy are set by the country and state of the deceased. In Australia, the laws are set at state level, not nationally. While the laws of each state are similar, there are differences between each jurisdiction, and you must check which laws apply to your estate to work out who are the beneficiaries, and their entitlements on intestacy.

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Conflict of Laws

There can be circumstances where more than one set of succession laws might apply to the deceased's assets. For example, if a person was living in one country when they died, but owned assets in another country, which country's succession laws apply? This is known as 'conflict of laws'.

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Each country has its own solution to the issue of conflict of laws. The approach taken in one country may be quite different to the approach taken in another.

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Most approaches treat assets that are physically tied to a country, such as land (known as 'immovable property'), differently from assets that are not - known as 'movable property'. Movable property encompasses physical assets, like a car, furniture, bank-notes, even gold bars. Intangible assets (like bank accounts, debts, shares) are generally also treated as movable property.

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In Australia, the broad approach is: movable property is governed by the succession laws of the place of domicile of the deceased, and immovable property is governed by the law of the place where that property is located.

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"Domicile" is not easily determined. It is not necessarily the place a person was located when they died, even if they have been there for some time. Sometimes, their domicile is determined by their place of birth, or may be another place even if the deceased has lived for weeks, months or even years in the place they died.

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Administrator of an Intestate Estate

When a person dies without a valid will, they have not made any valid nomination of their executor. In those circumstances, the court will appoint the person they consider most suitable to undertake the estate administration.

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In Australia the appointment is not automatic - a person who considers they should be appointed must apply to the court to be appointed.

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Usually, the person with the highest right to the assets on intestacy, such as a surviving spouse or adult child of the deceased, will be appointed. A creditor (who may otherwise not get paid) may be appointed.

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If no person is able or willing to apply, or the court does not consider the applicant suitable, then the Public Trustee - a government agency - may be appointed to undertake the administration.

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A person appointed to administer an estate who is not nominated as executor in a valid Will is known as an Administrator, and a grant in favour of that person is a grant of Letters of Administration.

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Administration of the Estate

Once the administrator is known, and which laws of intestacy apply, the process of administration is then the same as if there had been a valid Will. The administrator collects in the assets, pays the debts, attends to finalising taxes, and distributes the remaining funds to the beneficiaries.

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Depending on the jurisdiction, the administrator may require court approval before proceeding to make the final distributions.

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Conclusion

Intestacy laws set out the rules for who inherits if a person dies without a Will. Identifying which set of rules, from which jurisdiction, can be complicated where the deceased has moved between jurisdictions during their life, and/or has assets in more than one jurisdiction. Once the applicable intestacy laws are identified, and an administrator appointed, the administration from that point is effectively the same as if the deceased had left a Will in those terms.

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