What Happens If You Die Without a Will in Victoria?

The intestacy rules work down a hierarchy. The first person or class with a surviving member takes the estate; more remote relatives only inherit if everyone above them in the hierarchy has predeceased.

• Surviving partner only (no children of the deceased): the partner takes the whole estate.
• Surviving partner where all children are also children of the partner: the partner takes the whole estate.
• Surviving partner plus children from another relationship: the partner takes the personal chattels, a statutory legacy and half the residue; the children share the other half.
• No partner: the estate passes to children equally, with the share of any deceased child going to that child's own children per stirpes.
• No partner or children: the estate passes to parents.
• No parents: to siblings (and their children per stirpes).
• No siblings: to grandparents, then aunts and uncles, then first cousins.
• If none of the above: to the State of Victoria as bona vacantia.

A surviving partner includes a spouse and a domestic partner. A domestic partner is, broadly, a person who lived with the deceased on a genuine domestic basis as a couple where the relationship was registered or had existed for at least two years (or there was a child of the relationship). Where the deceased had both a separated-but-undivorced spouse and a current domestic partner, the Act contains specific rules for sharing or electing between them — a difficult and sometimes contested area where a will would have avoided the problem entirely.

The most commonly misunderstood rule is what happens where there is both a partner and children from another relationship. The partner does not take everything; nor do the children. The partner takes the personal chattels, a statutory legacy (a fixed dollar amount that is indexed and currently in the order of $530,000), interest on the statutory legacy from the date of death, and half the residue. The other half of the residue is divided equally among the children. For modest estates the partner may effectively take everything; for larger estates the children's half can be substantial.

If the hierarchy is exhausted with no living relative, the estate passes to the State of Victoria. The State Trustees administer such estates. Persons with a moral claim — for example a long-term carer, a close friend who was treated as family, or a charity the deceased supported — can apply for a discretionary ex gratia payment. The process is slow, uncertain and entirely avoidable: a simple will leaving the estate to nominated beneficiaries or charities prevents the entire problem.

The intestacy rules deal only with who inherits. They do not appoint an executor, do not appoint guardians for minor children, do not provide for stepchildren, do not allow for any specific gifts, and do not provide for the deceased's chosen charities. The practical consequences are:

• someone has to apply for letters of administration rather than probate, with the priority disputes that can involve;
• guardianship of minor children defaults to surviving parents or, if none, to a Family Court determination;
• stepchildren, long-term carers and unrelated dependants are left to bring TFM claims rather than taking under a will;
• tax planning opportunities (testamentary trusts, control of superannuation flows, charitable bequests) are lost;
• family disputes are more likely because the deceased's wishes are not on record.

Even in straightforward families with simple finances, preparing a will is one of the highest-value, lowest-cost pieces of legal work most adults will ever do.