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Intestate Succession (Vic)

It is vital that every adult has a valid and current will. If someone dies without a will they are “intestate”, and have no say in the distribution of their estate. An intestate estate in Victoria is administered according to the Administration and Probate Act 1958, which privileges the rights of the deceased’s closest relatives to inherit. An intestate estate will not make provisions that a testator might make in a will for distant relatives, friends or charitable entities. This article explores the rules of intestate succession in Victoria.

Intestacy In Victoria

Intestacy is more common than people might think, whether because people prefer not to dwell on their own mortality, or because they feel that there is time to make arrangements later after they have accumulated more assets. This leaves many families with the difficult task of administering an intestate estate. This can lead to acrimony amongst family members, as they fight over how they believe the deceased would have wanted to distribute their estate.

There are several ways that an estate can become intestate. An estate is intestate when a deceased has not made a will, or the will fails to adequately cover all the deceased’s assets. The latter typically occurs when a will is drafted without the help of a solicitor and/or is not regularly updated as the testator’s circumstances change. If the deceased was married or divorced after making a will, then this will also have an impact on testamentary validity. In Victoria, a will becomes invalid upon a testator’s marriage unless it was specifically composed in contemplation of marriage. A formalised divorce invalidates any will clauses relating to the former spouse, including any bequests and appointments to the role of executor or trustee.

If a will is challenged on the basis that it is invalid, then this also effectively makes an estate intestate. A challenge may be filed on the basis that the will was not properly signed and witnessed, or it is fraudulent, or because it was written under duress. Another important ground for challenge is that the testator lacked the necessary testamentary capacity to understand the consequences of making a will. It is legally insufficient for a family member to claim that a testator suffered from testamentary incapacity, as evidence must be submitted in the form of physician affidavit.

Who Administers An Intestate Estate?

Someone has to assume responsibility for the administration of an intestate estate. In Victoria, it is typically a member of the deceased’s family who applies for Letters of Administration from the Supreme Court Probate Office. In fact, it is common for the major beneficiary of an intestate estate, usually the spouse, to make the application. This is sensible as the beneficiary acts in his or her own best interests by managing the estate efficiently and with care. The family can request instead that the State Trustee take over the role of administrator, or if no family member makes an application, any other interested party can apply.

Intestate Succession Rules

An intestate estate is distributed according to the total value of the estate and whether the deceased has a surviving spouse and/or children.

The deceased’s partner inherits the entire estate if, after the payment of all the debts and expenses, the estate is worth less than around half a million dollars. Even an estranged spouse is entitled to inherit the spousal portion of an intestate estate, which is an important reason why a will should be updated after a marital breakdown.

In intestacy law, the term “spouse” can refer to a husband or wife, registered or de facto partner. The law in Victoria recognises that a couple can have the same degree of commitment without being legally married, and therefore the distribution of an intestate estate should treat a genuine de facto relationship in the same way as a marriage. A relationship is recognised as de facto on consideration of a number of factors, such as if the relationship is of at least two years duration before the death of the deceased, or the couple has a child together.

In the event that the estate is worth more than the statutory amount, and the deceased had children from another relationship, then those children are entitled to a share of the estate. In this circumstance, the spouse will receive the statutory legacy and any interest, all the deceased’s personal possessions, and half of the residual estate. The children in this scenario inherit in equal shares the other half of the remaining balance.

If the deceased had no surviving children or spouse, then the order of succession passes to the deceased’s parents, followed by siblings, then grandparents, aunts and uncles, and lastly cousins. When there is no surviving next of kin, then the estate is bona vacantia and transfers to the state.

The only way to guarantee that an estate will not be intestate is to draw up a valid and correctly executed will and ensure that it is regularly updated to reflect the personal and financial circumstances of the testator. The Contested Wills Team at Armstrong Legal can help you with this task, or any other probate issue. Please make a call to our office on 1300 038 223 or contact our team to make an appointment with our specialist solicitors.

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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