Significant changes have been made to the Administration and Probate Act 1958

Rose Lawyers on 3 April 2018

Last year the Administration and Probate Act 1958 (Vic) underwent significant changes, following recommendations from the Victorian Law Reform Commission to better clarify and unify state and Commonwealth intestacy laws—and ensure that succession laws are administered fairly and justly.

Intestacy applies when a person dies without leaving a valid Will. In this instance, the deceased person is referred to as the intestate. Amended on the first of November 2017, these laws apply to the estate of any person whose time of death follows this date.

If your existing Will requires revision, or you have a dispute concerning intestacy, get in touch. Rose Lawyers have been providing caring service to our clients for over 30 years. Contact us about your Will.

Previous intestacy laws

Previously, if a person with a partner but no children died without leaving a valid Will (or if the deceased had children but the total value of their estate did not exceed $100,000), their partner would be solely entitled to the intestate’s estate.

If the intestate had a partner and children, the partner would be entitled to personal chattels; the first $100,000 of the estate as well as one-third of the balance of the estate. The child or children were then entitled to the remaining two-thirds of the balance of the estate. The biggest issue with this was that children could then force the sale of property where a remaining partner continued to live in, essentially leaving them homeless.

The Commission believed that this division of the estate had the potential to cause significant financial distress to the partner, so changes were made in the interest of fairness through the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017.

What are the changes to intestacy laws in Victoria?

changes to intestancy laws in victoria happy family with intestant

The new intestacy laws have been implemented to provide greater security and stability to a surviving partner. As per the previous ruling, if a person dies intestate with a partner but no children, the partner receives the value of the residuary estate.

Under the new amendments, if a person with a partner and offspring—from that relationship—dies intestate, the partner is entitled to the entire estate. In order to benefit from an intestate estate, a beneficiary must survive the intestate by 30 days.

However, variations to these laws sometimes apply when children from other partnerships are involved, or when there have been multiple partners. Here are a few examples:

1. A partner and children not from that partner

If a person dies intestate with a partner and children from another person, the value of the estate dictates the distribution. If the residual estate is worth more than the statutory legacy, currently $451,909, then:

  • The partner receives all personal chattels, the statutory legacy plus any interest, and half of the balance of the residual estate.

  • The children of the deceased are entitled to the other half of the balance of the remaining estate, with equal shares for every child of the deceased.

A partner of the intestate may also elect to acquire property from the intestate’s estate at its value from the date of the intestate’s death. Certain requirements and limitations are outlined in the legislation where implementing property acquisition is concerned.

2. Multiple partners and no children

If the intestate has no children but has multiple partners, the partners are entitled to the whole of the estate. The estate will be divided in one of the following ways:

  • Under a distribution agreement

  • In line with a distribution order from the Court

  • In equal shares

3. Multiple partners and children (from one or more of those partners)

When more than one partner and a child (or other children from one or more of those partners) is concerned, the partners are entitled to the whole of the residuary estate. The estate will be divided in one of the following ways:

  • Under a distribution agreement

  • In line with a distribution order from the Court

  • In equal shares

4. Multiple partners and children not of those partners

Where an intestate has more than one partner and a child or children not of those partners:

  • The partners are entitled to share the personal chattels via agreement, distribution order, or equally.

If the residuary estate is worth less than the statutory legacy, and if the intestate had left one partner (currently $451,909), the partners receive the full amount of the residuary estate by agreement, distribution order, or equally.

However, if the residuary estate is worth more than the statutory legacy, if the intestate had left one partner:

  • The amount of the statutory legacy is payable to the partners by agreement, distribution order, or equally—plus any interest; and

  • half of the balance of the residuary estate is payable to the partners by agreement, distribution order, or equally; and

  • any children will divide the remaining half equally.

5. No partner but surviving children

If the intestate leaves no partner but has surviving children, the balance of the estate is to be shared equally among them. If any child predeceased the intestate and has children of their own, these children (the intestate’s grandchildren) will receive the share that their deceased parent would have received.

6. Other possible relationships and distributions

If an intestate has no partner and no children to inherit the estate, then the surviving parents of the intestate receive the balance of the estate.

If there are no surviving parents, the siblings of the intestate will be entitled to equal distribution of the estate. If there are no siblings, the grandparents of the intestate will receive the estate.

If there are no grandparents, the aunts and uncles are entitled to equal distribution of the intestate estate. If there is no person who is entitled to the estate of the intestate under these provisions, then the residuary estate passes to the government.

The government will fund these searches as necessary.

Organise your Will and avoid intestacy

changes to intestancy laws in victoria possible relationships and distributions

It's ultimately a lot better to have a comprehensive and valid Will in place to avoid your assets being distributed according to intestacy law. While every attempt has been made to reflect fairness in distribution, no amount of legal ruling can account for the nuanced relationships that you enjoy in your life.

You may have a beloved friend to whom you wish to pass on a valued item, but intestacy law does not allow for this. Or, you might have a family member you do not wish to pass anything on to. Again, intestacy law does not recognise this.

Writing a valid Will is the only way to ensure your wishes will be carried out after you're gone. We can make sure this happens.

If you need help handling an intestacy, our Will and estate lawyers can help. Call us on 03 9878 5222 for a free consultation.