How Probate Without a Will Works in NSW

Probate is not available without a will in NSW. Instead, a person entitled under the intestacy rules in the Succession Act 2006 applies to the Supreme Court for letters of administration. The law then decides who inherits, starting with a spouse and children. Administration applications take about 11 to 12 weeks to process.

On this page

• Introduction
• Death without a will
• No will, no probate
• Applying for administration
• Who can apply
• How assets are distributed
  • Spouse
  • No spouse
• While you wait
• How long it takes
• Family disputes
• Getting it right

Introduction

When someone dies without a will, families often search for how to get a grant of probate without a will. The short answer is that you cannot. In NSW, probate is only granted where there is a valid will naming an executor. When there is no will, the Supreme Court issues a different grant, called letters of administration, and the law decides who inherits.

This guide explains how that process works, who can apply, how the estate is divided, and what to do when family members do not agree.

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Death without a will

A person who dies without a valid will is said to have died intestate. Their estate is then distributed under the intestacy rules in Chapter 4 of the Succession Act 2006. Those rules set out a fixed order of relatives who inherit, starting with a spouse and children and working outwards through the family.

Until the Court appoints an administrator, nobody can

• legally sell the house,
• close bank accounts, or
• pay beneficiaries.

The deceased’s wishes, however, clearly expressed during their lifetime, have no legal effect unless they were recorded in a valid will. If a document exists that was never properly signed or witnessed, it may still be admitted as an informal will under Section 8 of the Succession Act 2006. That changes the application entirely, so it is worth checking before you assume there is no will.

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No will, no probate

Probate is the Court’s confirmation that a will is valid and that the named executor has authority to act. Without a will, there is no executor and nothing for the Court to prove. The Supreme Court of NSW treats the two grants separately and publishes a separate fact sheet on applying for letters of administration.

There are two types of administration grant:

• Letters of administration apply where the deceased died without a will.
• Letters of administration with the will annexed apply where there is a will but no executor able to act, such as where the named executor has died.

People also ask whether all wills have to go through probate in Australia. They do not. Each state and territory sets its own rules, and in NSW there is no statutory requirement to obtain a grant in every case. The same applies to intestate estates. If the deceased held all their assets as joint tenants with a surviving partner, those assets pass to the survivor automatically. Some banks will also release modest amounts to the next of kin on sight of the death certificate and a signed declaration or indemnity.

A grant is required if the deceased owned real estate in their sole name or as tenants in common. The Court will not make a grant if there are no assets in NSW to administer.

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Applying for administration

Most applications are filed online through the NSW Online Registry, and uncontested applications are decided by a Registrar on the papers. There is no court hearing.

The main steps are:

1. Confirm there is no will. Search the deceased’s papers, their bank, any solicitor they used, and the NSW Trustee and Guardian.
2. Work out who is entitled. The applicant must usually be someone entitled to all or part of the estate under the intestacy rules.
3. Publish a notice of intended application on the NSW Online Registry. The Court cannot make a grant until 14 days after publication, under Section 42(2)(b) of the Probate and Administration Act 1898.
4. Obtain consents or serve notice. Everyone else entitled to share in the estate must consent to the application or be served with notice of it.
5. Prepare and file the documents, including the summons, an affidavit of the applicant, and an inventory of the estate’s assets and liabilities.
6. Provide an administration bond if required. Where consents cannot be obtained, or a beneficiary is under 18 or lacks capacity, the Court may require a bond with two sureties to protect that person’s share.

You should apply within six months of the date of death. After that, you must explain the delay under Part 78 Rule 16 of the Supreme Court Rules 1970. Legal Aid NSW also publishes guidance on the process.

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Who can apply

Generally, only a person entitled to a share of the estate can apply. The most common applicant is the surviving spouse or de facto partner. A de facto partner qualifies if the relationship

• was registered under the Relationships Register Act 2010 (NSW), or
• had lasted continuously for two years, or
• had produced a child.

There are limited exceptions. The Court can make a grant to the attorney of an entitled person who lives outside NSW, or to the guardian of an entitled child under 18. If no family member wants to apply, you can ask the NSW Trustee and Guardian to make the application.

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How assets are distributed

The intestacy rules follow a strict order. Each category must be exhausted before the next one inherits.

Spouse

The spouse’s entitlement is set out in Part 4.2 of the Succession Act 2006:

• If there is a spouse and no children, the spouse takes the whole estate under Section 111.
• If all of the deceased’s children are also the spouse’s children, the spouse still takes the whole estate under Section 112.
• If the deceased had children from another relationship, Section 113 gives the spouse the personal effects, a statutory legacy, and half of the remainder. The children share the other half.

The statutory legacy is calculated under Section 106 from a base figure of $350,000 set in 2005, adjusted for changes in the Consumer Price Index. Where the deceased left both a legal spouse and a de facto partner, the spouses share the spouse’s entitlement.

No spouse

If there is no spouse, Part 4.3 of the Act distributes the estate in this order:

• children (Section 127),
• then parents (Section 128),
• then brothers and sisters (Section 129),
• then grandparents (Section 130),
• then aunts and uncles (Section 131).

Where a child, sibling, aunt, or uncle has died, their own children may take their share. If no eligible relative exists, the State of NSW takes the estate under Part 4.5.

Two points to bear in mind:

1. Stepchildren are not entitled under the intestacy rules.
2. A former spouse from a finalised divorce has no entitlement at all.

In blended families, those rules can produce results the deceased would never have chosen, which is one of the strongest reasons to make a will.

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While you wait

The estate is effectively on hold. Bank accounts in the deceased’s sole name are frozen, and property held in their sole name cannot be sold or transferred. The family should:

• Secure the home, vehicles, and valuables.
• Keep insurance on any property current.
• Keep receipts for funeral costs and any estate expenses paid personally.
• Notify banks, super funds, and insurers of the death.

Once the grant is made, the administrator

• collects the assets,
• pays the debts, and
• distributes the estate under the intestacy rules.

Administrators receive the same protection as executors under Section 93 of the Succession Act 2006. That protection applies if they distribute at least six months after the death, after publishing a notice of intended distribution with a period of at least 30 days, and with no notice of a family provision claim.

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How long it takes

Letters of administration currently take longer to process than probate. In the week of 21 September 2026, the Supreme Court was assessing administration applications filed between 26 June and 6 July 2026, a wait of about 11 to 12 weeks.

Add the 14-day notice period, the time needed to gather consents or arrange a bond, and any requisitions, and the grant stage can take four months or more. Distribution then follows the same timeline as a probate estate, with the six-month and 30-day protections under Section 93. Our guide on how long probate takes in NSW explains each stage in more detail.

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Family disputes

Intestate estates produce their own disputes. The most common involve:

• Who qualifies as a spouse. A claimed de facto partner may need to prove the relationship lasted two years. In my family law practice, disputes about when a relationship started or ended are common, and the same question can decide who inherits.
• Who should be administrator. Where siblings or multiple spouses cannot agree, the Court may need to decide.
• Whether a will exists after all. A relative may produce a handwritten note or an unsigned document and argue it is an informal will.
• Whether the intestacy rules are fair. An eligible person, such as a stepchild who was dependent on the deceased, can apply for a family provision order within 12 months of the date of death under Section 58(2) of the Succession Act 2006.

A person with an interest in the estate can lodge a caveat to stop a grant being made. A caveat lasts six months under Part 78 Division 10 of the Supreme Court Rules 1970, and an applicant can seek its removal under Part 78 Rule 71.

Most of these disputes can be resolved without a final hearing. Section 98 of the Succession Act 2006 deals with mediation in family provision proceedings. Early mediation is often the fastest way to protect the estate from legal costs. If a dispute has already started, our contested estates lawyers can advise you on your position.

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Getting it right

An intestate estate asks more of the family than a probate estate. Someone has to prove their entitlement, gather consents from relatives who may not be on speaking terms, and follow rules that leave no room for the deceased’s wishes. Mistakes at the start can mean months of delay or a dispute that consumes the estate.

Buckley Lawyers handles letters of administration from the first search for a will through to final distribution. We confirm who is entitled, manage consents and bonds, and deal with disputes before they reach court. For more on our estate services, see our grant of probate page.

Contact us today to schedule a consultation.

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