Menu

Back to articles

What happens if you die without leaving a Will? The new Intestacy Laws in Victoria

If you die without leaving a valid Will your Estate will more than likely come under the new Intestacy provisions in Victoria. Intestacy places a large responsibility on your surviving family as they will need to rely upon a legislative formula that guides how your Estate will be distributed. This will mean that you have no control over who distributes your estate and whether your Estate will be distributed according to your intentions.

This means that a family member will need to apply to the Supreme Court for Letters of Administration and this may result in your estate being distributed in a way that you had not intended. In turn, disputes may arise within your remaining family which can result in unnecessary and expensive litigation.

On 1 November, 2017 significant new laws came into effect in Victoria affecting intestate estates through the commencement of the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017.

It is important that you are aware of these changes and the options that they create for you. The majority of the changes affecting the Intestacy provisions will only affect anyone who dies after the amending Act and include:

  1. Where the intestate leaves a partner and no children that belong to the intestate and the partner – the partner receives the whole estate.
  2. Where the intestate leaves a partner and there are children that belong to the intestate and the partner – the partner receives the whole estate (this is a significant change).
  3. Where the intestate leaves a partner and there are children that belong to the intestate but not the partner, then the partner will receive a defined amount (a partner’s statutory legacy which is indexed each year), the personal chattels, interest on the partner’s statutory legacy and half of the balance of the deceased estate. The remaining half of the balance of the estate will be divided equally between the children.
  4. If there is more than one partner the estate must be dealt with in accordance with a complex statutory formula.
  5. If there are no partners and only children then the Estate passes to the children, however there is an additional formula to be applied if one of your children has predeceased you.
  6. If there is no surviving partner or any surviving children, the hierarchy of distribution is in accordance with the statutory “line” of remaining family members.

Having a current valid Will is always important to avoid your Estate becoming subject to the new intestacy provisions. We can help you by reviewing or updating your Will and recommend that you should review your Will:

  1. Every two to three years or if your financial circumstances should change;
  2. If a nominated beneficiary dies;
  3. If your nominated Executor dies or become unfit to act due to failing health;
  4. If you separate from your partner or re-marry: or
  5. If you have any queries or concerns about your current Will.