Partial Intestacy in NSW: How to Avoid It

Having a Will does not guarantee that your estate will be distributed according to your final wishes. In fact, even with a Will, partial intestacy in NSW may still happen. Hence, when making a Will, it is important to seek legal advice and guidance to avoid intestacy.

What is Intestacy?

Intestacy in NSW may happen in these circumstances:

  • When a loved one dies without a Will, thus, referred to as dying intestate.
  • There is a Will but all assets of the estate were not properly accounted for.
  • If the Will maker lacks the testamentary capacity to make the Will.
  • When the beneficiaries predecease the testator.
  • The Will is invalid and failed to follow all the legal requirements.

Intestacy may lead to severe consequences, not only for the deceased’s assets but also for the loved ones left behind. When intestacy happens, the deceased’s wishes for their estate are not legally established. Hence, the manner of distribution of the intestate estate will be conducted according to the rules prescribed in the Succession Act 2006.

Succession Act 2006

The Succession Act 2006 governs the creation, execution and administration of Wills in NSW. More importantly, it outlines a predetermined order of succession of an intestate estate.

Intestate Succession

Before the Supreme Court of NSW grants an application for Letters of Administration, it needs to consider if:

  • The deceased was married or in a de facto relationship.
  • There are children with someone other than the spouse.

In NSW, the rule of intestacy prioritises the spouse first, then the children, then parents and grandparents, and finally the siblings. However, there are cases when someone dies with no surviving blood relatives. In addition, if the deceased has no beneficiary, then the State will be entitled to the intestate estate.

Why Avoid Intestacy?

The leading implication of intestacy is that all the deceased’s assets will not be distributed based on their wishes. Even if there is a Will, if it is found to be invalid, then intestacy rules will apply. Hence, the intestate assets may be distributed to people who the deceased did not consider as a suitable beneficiary.

Partial Intestacy in NSW

Things to Keep in Mind

Here are some things to remember when dealing with a loved one’s death with or without a Will:

  • Dying with a valid Will in NSW means administering the estate will be straightforward. Hence, if you are an Executor named in the Will, then you must apply for Grant of Probate. Once probate has been granted, you may commence your duties and proceed with administering the estate. This also includes distributing the assets according to the Will. The Supreme Court of NSW provides a checklist that can help you through the probate process.
  • However, if the deceased died intestate, you will need a Grant of Letters of Administration to become an administrator of the estate. This authorises the applicant(s) to distribute the assets of an intestate estate. The Supreme Court of NSW also has a detailed checklist to guide you with your application.

How to Avoid Partial Intestacy in NSW?

Partial intestacy in NSW can be avoided by updating your Will every three (3) to five (5) years or if you experience major life changes like:

  • A growing family;
  • When a relationship changes;
  • Executor named died or can no longer fulfill the responsibilities;
  • Beneficiary is dying;
  • Death of a spouse;
  • Diminishing value of legacies over time;
  • Retirement;
  • Buying or selling assets.

You can also avoid partial intestacy if you ensure all aspecst of your estate are accounted for. For example, when acquiring or selling any asset, make sure the changes are included in your estate.

Moreover, store your Will in a safe place and make sure your family, beneficiaries, and executor know where its location. Consequently, this will avoid any inconvenience like losing or misplacing the Will, which may lead to intestacy.

Using a do-it-yourself (DIY) Will that is guided by a paralegal can also help you avoid partial intestacy. However, if your circumstance is complex, it is best to seek guidance from an experienced solicitor. Indeed, having proper legal advice will help you ensure your Will is valid and compliant with legal requirements.

Why Does a Valid Will Matter?

A valid Will sets out how your estate will be properly distributed when you die. Moreover, a valid Will indicates that all your assets will go where you want them to. This is particularly important when you have a family or other people that are financially dependent on you.

Prevent Partial Intestacy in NSW with VC Lawyers

Partial intestacy in NSW can be a daunting process to go through while grieving for a loved one. Planning and securing a Will cannot guarantee that everything will fall into place after death. However, proper guidance from legal professionals can help make sure your Will is valid.

At VC Lawyers, we ensure that your Will is compliant with legal requirements and written according to your terms and wishes. Our solicitors have extensive experience in Wills preparation and can give you practical advice and legal guidance on this matter.

Contact our team today for any legal assistance in executing your Will in NSW.

NB: This blog post is neither a legal advice nor intended to be such, and is only for general information. The same should not also be taken as a financial or commercial advice. The reader must personally consult their professional adviser/s on the contents of this blog post. VC Lawyers is not liable for any loss or damage, direct or consequential, as a result of the reader’s or a third person’s misconstruction of the wordings or use/misuse of the contents of this blog post.

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Pelagio Palma Jr., BA, LLB, LLM, MBA

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16 February 2026

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