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Intestate Succession Act Victoria

When someone dies without making a valid will in Victoria, that person is considered to be intestate. Any wishes that they might have expressed during their life about the disposition of their estate is ignored, and the estate is administered according to the applicable intestate succession act, which in Victoria is the Administration and Probate Act 1958. The intestate person’s estate is distributed according to the rules set out in this legislation, which favour distribution to any surviving spouse and children. This article examines some of the critical concepts that apply to administering an intestate estate in Victoria under this succession act.

What Happens When Someone Dies Intestate in Victoria?

When someone dies without a will in Victoria, the family of the deceased is faced with the complicated process of administering an intestate estate. The relevant intestate succession act in Victoria stipulates that an administrator applies to the Supreme Court to be issued a Grant of Letters of Administration. This Grant assigns the administrator the authority to act much like an executor and distribute the deceased estate. If no family member is able to act as administrator, the Court can appoint the State Trustee in the role. Where the deceased died without family, any person can apply to the Supreme Court to administer the estate, including a creditor of the estate.

Who Inherits an Intestate Estate in Victoria?

When a person dies intestate in Victoria, their estate is distributed according to an order of succession mandated by the governing act. The distribution of the deceased’s estate varies depending on the size of the overall estate and whether the deceased had children or a partner when they died. When the deceased’s estate is valued at less than around half a million dollars, their partner inherits the entire estate. If the estate has a value higher than this, and the deceased has children from a previous relationship, then the children are eligible to inherit a share of the estate. Should a deceased have no immediate family then the order of succession according to the intestate act is firstly the parents, then siblings, grandparents, aunts and uncles and then cousins. If the deceased had multiple partners during their life then complicated rules of inheritance apply under the governing act, and specialist legal advice should be sought.

Do De Factor Partners Inherit Under Victorian Intestate Succession Law?

According to intestate law, a de facto partner is a person who was not married to the deceased but who lived with them on a genuine domestic basis. The governing intestate succession act in Victoria recognises de facto relationships as indistinguishable from marriage for the purposes of inheritance. In 2014 an amendment to the Administration and Probate Act 1958 streamlined the criteria for eligibility to be considered de facto. A de facto couple in Victoria will be recognised as spouses if they have cohabitated for several years, have a child together, or have formally registered their relationship with the state.

What is an Informal Will?

Many people think that they have a valid will, and then after their deaths, their families find that they still have to struggle with the burden of managing an intestate estate. This is because it is common for someone who drafts their own will to fail to conform to the legal formalities. If a will is not witnessed or signed appropriately it can be deemed invalid. A will must be signed by the testator in the presence of two witnesses, who cannot themselves be beneficiaries of the will or the spouse of the testator. These witnesses must sign the will themselves, in the presence of the testator and each other. Although a court will make every effort to carry out the wishes expressed in an informal will, this process is as complex for the family of the deceased as administering an intestate estate.

What is Partial Intestacy?

In Victoria, a deceased’s estate may be subject to the intestate succession act even when there is a valid will. This situation can occur when the will does not account for all the assets of the deceased, resulting in a partial intestacy. For this reason, it is important that a will is updated over the years as further assets are acquired, as well as when children are born, and relationships begin and end. When a partial intestacy is discovered, the named executors must apply to the Supreme Court for Letters of Administration to cover the overlooked assets.

A lawyer can ensure that a deceased’s estate is not subject to the legislative dictates of an intestate succession act through careful drafting and regular updating of a will. If you need more information about legislative acts that govern intestate succession in Victoria or have any questions about wills and estates generally, please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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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