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Changes to Victorian Intestacy Provisions – Dying Without A Will


As of 1 November 2017, new legislative provisions will take effect in Victoria in relation to the distribution of an intestate estate. This is where a person dies without leaving a Will.

The new provisions are as follows:

  • Where the Deceased leaves a partner, but no child or children, that partner is entitled to the whole of the estate.
  • Where the Deceased leaves a partner and a child, or children of that partner, the partner is entitled to the whole of the estate.
  • Where the Deceased leaves a partner and a child, or children who are not the child, or children, of that partner, the partner is entitled to the whole of the estate, if the value of that estate is not more than $451,909.00 (the Statutory Legacy Amount), including the personal effects of the Deceased.
  • Where the Deceased leaves a partner and a child, or children who are not the child, or children, of that partner, and the net estate is more than $451,909.00 (the Statutory Legacy Amount), the partner is entitled to:
    • the Statutory Legacy Amount;
    • the personal effects of the Deceased;
    • interest on the Statutory Legacy Amount amount from the date of death to the payment of the Legacy. Interest is calculated under a specific formula incorporated in the new legislation;
    • 1/2 of the balance of the residue of the estate;
    • the child is entitled to the remaning half of the residue of the estate and if more than one, in equal shares;
    • If a child, or children, of the Deceased died before the Deceased parent, then the offspring of the Deceased child, or children will take the share their parent would have received and, if more than one, they will take that portion in equal shares.

A partner includes a spouse, domestic partner or registered caring partner as at the date of the Deceased’s death. The above does not apply

Distribution if the Deceased Leaves Multiple Partners

  • Where the Deceased leaves more than one partner, but no child or children, the partners are entitled to the whole of the residuary estate. This may be distributed in equal shares , or in accordance with a distribution agreement.
  • Where the Deceased leaves more than one partner and a child, or children of that partner, or partners, the partners are entitled to the whole of the residuary estate. This may be distributed in equal shares , or in accordance with a distribution agreement.
  • Where the Deceased leaves more than one partner and there is a child, or children who are not that of the partner, or partners, the partners are entitled to:
    • share in the personal effects of the Deceased pursuant to a Distribution Agreement, Distribution Order or in equal shares pursuant to the Act;
    • if the net value of the estate is equaled to, or less than the Statutory Legacy Amount, the partners will share in the residue pursuant to a Distribution Agreement, Distribution Order or in equal shares pursuant to the Act;
    • if the net value of the estate is worth more than the Statutory Legacy Amount, then the partners are entitled as to the value of the Statutory Legacy Amount to be share equally and 1/2 of the balance of the residue of the estate equally as between those partners pursuant to a Distribution Agreement, Distribution Order or in equal shares pursuant to the Act. The child, or children of the intestate are entitled to the remaining half share, which is to be distributed equally if there is more than one child.

Distribution if there are no Partners

  • If there is a surviving child of the Deceased, that child will take the residue of the estate. If there is more than one child, then those children will take the residue of the estate in equal shares.
  • If that child, or children of the Deceased, dies before the death of their parent and has left behind a child, or children of their own (grandchildren), then that grandchild, or grandchildren will take their deceased’s parent’s share equally.

Distribution if there are no Partners or Children

  • If the Deceased leaves more than one surviving parent behind, then the Deceased’s estate is to be share equally as between the surviving parents. If there is one surviving parent, then that parent will take the whole of the residue of the estate.
  • If the Deceased does not have any children, partners or parents, but has siblings, then those siblings are to share in the residue of the Deceased’s estate equally. If there is only one sibling, then that sibling will take the whole of the residue of the estate. If the sibling has died before the Deceased and that sibling has left behind a child, or children, then that child is entitled to the share their parent would have received. If there is more than one child, then those children will take their parent’s share equally.
  • If the Deceased is survived only by grandparents, then the grandparents will be entitled to the whole of the Deceased’s estate in equal shares. If there is only one grandparent, then that grandparent will receive the whole of the residue of the Deceased’s estate.
  • If the Deceased is only survived by aunts and or uncles, then those aunts or uncles will share equally in the residue of the Deceased’s estate, if there is more than one. If those aunts and or uncles have predeceased the Deceased, but have a child or children (first cousins), then that first cousin, or first cousins, will receive the share the aunt / uncle would have taken had they survived the Deceased.

Crown to Take if No Person Entitled

  • If there is no person under the Act who is entitled to the residue of the Deceased’s intestate estate, the residuary estate will pass to the Crown (government).
  • The above categories and proposed distributions are subject to Family Provision Claims brought against the estate pursuant to Part IV of the Administration and Probate Act 1958 (VIC).

Image Credit – Andriy Popov © 123RF.com

Written by Paul Traianedes on November 30, 2017

Paul has significant legal experience in the area of Wills, Estates and Trust disputes, gained from working in boutique firms specialising in these areas of the law. Paul also ran such matters as part of an in-house legal team for a major trustee company. View Paul's profile


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