If you die without a valid will in Victoria, the law decides who receives your estate, and it may not be who you would have chosen. This is called dying intestate. The rules are set out in the Administration and Probate Act 1958 (Vic), and they apply to everything you own in your own name.
The rules follow a fixed order of family members. They make no allowance for close friends, carers, charities, stepchildren you never adopted, or what you told your family you wanted.
Having a will does not always avoid these rules. A will that was not properly signed and witnessed may be invalid. A will that only deals with some of your property, or whose beneficiaries have all died before you, can leave part of your estate to be distributed as if you had no will.
Who inherits your estate
Your partner comes first, then your children, then other relatives in a set order. "Partner" means a spouse, a domestic (de facto) partner, or a registered caring partner who was in that relationship with you when you died.
A partner and no children: your partner receives everything.
A partner, and children who are all your partner's children too: your partner receives everything.
A partner, and at least one child who is not your partner's child: your partner receives your personal effects, the statutory legacy and half of the rest. Your children share the other half equally.
Children but no partner: your children share everything equally.
No partner and no children: your estate goes to other relatives in the order below.
No relatives in any of those groups: your estate goes to the State of Victoria.
The statutory legacy is a fixed sum set by law and indexed each year. For deaths between 1 July 2026 and 30 June 2027 it is $591,390. If the estate is worth less than the legacy, a partner in a blended family can receive the whole estate and the children receive nothing.
An example
Anna dies without a will. She leaves her husband, Tom, and two adult children from her first marriage, Sophie and Jack. After her personal effects, her estate is worth $900,000.
Tom receives Anna's personal effects and the statutory legacy of $591,390. That leaves $308,610, which is split in half. Tom receives one half, $154,305, so his total is about $745,695. Sophie and Jack share the other half, receiving about $77,150 each.
If Anna's estate had been worth $500,000, Tom would have received all of it, and Sophie and Jack would have received nothing. Many people in blended families are surprised by this outcome. It is often not what the person who died would have wanted.
If a child has already died, their own children (your grandchildren) take the share their parent would have received.
Where there is no partner and no children or grandchildren, the estate goes to the first of these groups that has a living member:
Your parents, equally.
Your brothers and sisters, equally. The children of a brother or sister who has died take that person's share.
Your grandparents, equally.
Your aunts and uncles, equally. The children of an aunt or uncle who has died (your first cousins) take that person's share.
If none of these relatives is alive, your estate passes to the State of Victoria.
What the intestacy rules don't cover
The intestacy rules only apply to assets that form part of your estate. Some of your most valuable assets may pass outside your estate altogether, whether or not you have a will.
Jointly owned property. A home or bank account held as joint tenants passes automatically to the surviving owner. Property held as tenants in common is different: your share forms part of your estate.
Superannuation. Your super fund trustee decides who receives your super, guided by any nomination you have made. If you have a valid binding nomination, the trustee must follow it. Super is only paid to your estate if you nominate your estate or the trustee decides to pay it there.
Life insurance. Policies with a nominated beneficiary are usually paid directly to that person.
Assets held in a company or trust. These belong to the company or trust, not to you personally, and are dealt with under its own rules.
It is worth checking how each of your assets is held. Your super nomination and the way you own your home can matter as much as your will.
Who looks after the estate
Without a will there is no executor, so someone has to apply to the Supreme Court of Victoria for letters of administration. That person, the administrator, then has the legal authority to collect your assets, pay your debts and distribute what is left under the rules above.
The administrator is usually your partner or an adult child. They have the same legal duties as an executor, and they can be personally liable if they distribute the estate incorrectly.
Applying for letters of administration involves several steps:
Publishing a notice of intention to apply on the Supreme Court's website.
Preparing an inventory of the assets and liabilities of the estate.
Swearing an affidavit about the death, the family and the estate.
Filing the application with the Probate Office and waiting for the grant.
Once the grant is issued, the administrator can deal with banks, sell property and pay creditors. They should not distribute the estate too early, because a claim against the estate may still be made.
If family members cannot agree on who should apply, the court may have to decide. This can add months to the process and reduce what is left for the family.
Where problems arise
Blended families. Children from an earlier relationship can receive little or nothing if the estate is worth less than the statutory legacy. Stepchildren you have not adopted receive nothing at all.
De facto partners. Your partner may have to prove the relationship existed when you died. This can lead to disputes with your children or parents.
Separated but not divorced. A spouse you have separated from may still be treated as your partner, depending on the circumstances.
Children under 18. Their share is held on trust until they turn 18. You cannot choose who manages it, or delay their inheritance to an older age.
No one you would have chosen. Friends, carers, charities and stepchildren have no entitlement, however close they were to you.
Delay and cost. Applying for letters of administration usually takes longer, and costs more, than proving a will.
Family provision claims. Even under the intestacy rules, an eligible person who has been left without proper provision can apply to the court for a greater share. Claims must generally be made within six months of the grant.
How to avoid it
A will lets you choose who receives your estate, who manages it, and who cares for your children. It should be reviewed whenever your life changes, such as marriage, separation, divorce, a new child or a new partner. In Victoria, marriage generally revokes an earlier will and divorce revokes gifts to a former spouse.
A well-prepared will usually covers:
An executor you trust to manage your estate, and a back-up if they cannot act.
Who receives your estate, including specific gifts of money, property or items of sentimental value.
What happens if a beneficiary dies before you, so your estate does not fall back into the intestacy rules.
A guardian for your children under 18.
Testamentary trusts, if you want to protect an inheritance for young or vulnerable beneficiaries, or to manage tax.
It is also worth making an enduring power of attorney and appointing a medical treatment decision maker. These documents cover decisions while you are alive but unable to make them yourself, which a will does not.
Do-it-yourself will kits are cheap, but mistakes in the wording or the signing are common. Fixing them after your death can cost your family far more than having the will prepared properly in the first place. If you already have a will, it is worth reviewing it every few years, even if nothing major has changed.
O'Haire Legal prepares wills, enduring powers of attorney and medical treatment decision maker appointments at a fixed fee. Call us on (03) 7064 0341 or email home@ohairelegal.com.au.
This article is general information only and is not legal advice. Your situation may be different, so please speak to a lawyer before acting.
