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Dying Intestate in Victoria

When a person dies without leaving a legal will, it is described as dying intestate. After someone dies intestate in Victoria, their estate (which includes all property that is left after debts and funeral expenses are paid) is distributed according to rules set down in legislation. In this situation, it is necessary for the administrator to apply to the Supreme Court for a Grant of Letters of Administration so that they have the authority to distribute the estate. This makes the probate process significantly harder and often requires expenditures that will financially impact the estate.

What Happens When Someone Dies Intestate in Victoria?

When someone dies intestate, their possessions are distributed according to state law. In Victoria, the legislation that determines the distribution of the residuary estate is the Administration and Probate Act 1958 (Vic). Unfortunately, this process results in a significant amount of inconvenience and additional effort for the family of the deceased. The deceased’s estate may also be distributed in a way that is not in keeping with their wishes.

Can You Be Intestate if You Have a Will?

Even when there is a valid will, a partial intestacy can still occur if the document does not bequeath all the deceased’s assets. This often happens when a will is not updated over time. When a partial intestacy occurs, the executors still have to apply to the Supreme Court for Letters of Administration so they can account for the remaining assets.

Intestacy may also occur when the deceased has left a will, but it does not observe the legal formalities because, for instance, it is not signed or witnessed properly. Although the court will attempt to implement the wishes of the deceased, it can be as difficult to administer an estate where there is an informal will as if there was no will at all.

A competent solicitor can draft a will to avoid these situations by contemplating future assets and clearly indicating how these assets should be distributed while ensuring that they also observe all formalities of will drafting.

How is an Intestate Estate Administered?

When someone dies intestate in Victoria, it is necessary for someone to request a Grant of Letters of Administration through the Probate Office of the Supreme Court. Alternatively, the family of the deceased can request for the estate to be administered by the State Trustee. Where the deceased has no family, anyone can apply for Letters of Administration, including a creditor.

How is an Estate Distributed after Dying Intestate in Victoria?

If a person dies intestate in Victoria the distribution of their estate depends on the size of the estate and whether they have a partner and/or children. When the deceased has a partner, and their estate is worth less than approximately half a million dollars after debts and funeral expenses, then the partner inherits the estate in its entirety. Where the estate is worth more than this amount, and the deceased has children from a previous relationship, the children of the deceased are entitled to a share of the estate. If the deceased has no partner or children, then the estate goes first to parents, then siblings, grandparents, uncles and aunts, and cousins. There are also complex rules of inheritance that apply if the deceased had multiple partners during their life.

Are De Facto Partners Recognised in Distribution of Deceased Estates?

A de facto relationship is defined as two people who are not married but live together as a couple on a genuine domestic basis. Historically the law has not always recognised de facto relationships, and this has had unfortunate outcomes, especially when one member of a de facto relationship dies intestate. Fortunately, modern intestacy law in Victoria recognises de facto relationships and protects the rights of de facto partners. To be accepted as de facto spouses in Victoria, a couple needs to have lived together for several years, share a child, or have registered the relationship formally with the state.

Why Is a Will Important?

Although the legislation that governs intestacy in Victoria is designed to be as sensible and fair as possible, standardised rules will not work for the particularities of every family. For instance, a deceased may have an exceptionally close relationship with her children, then remarry later in life and live with a new spouse for a short period prior to death. According to the rules governing intestacy in Victoria, if her estate is worth $450,000 after debts are paid, the recent spouse would inherit the entire estate. This arrangement may well have suited the deceased, but it is equally possible that she would have left a different distribution of assets in a will.

If you have any questions related to dying intestate in Victoria or any other questions about wills and estates, please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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