Intestacy laws in Victoria
What is Intestacy?
When you die without a will, you don't leave any formal arrangement for what to do with your property and assets—your estate. This is called ‘intestacy'. When this happens, your estate will be distributed according to intestacy laws.
What happens when there's no will?
Intestacy laws outline the procedure of what to do when a deceased person leaves no will, as well as a list of people who are entitled to receive a share of the person's estate. This provides some security and structure in what can be a difficult process.
Administering an estate
Someone will need to apply to the Supreme Court for a grant of Administration and for an appointment as an administrator, usually the deceased's next of kin, to administer the estate. This includes making a list of every single thing the deceased owned, from real estate and bank accounts right through to furniture and books.
The Administrator must then do everything in their power to preserve the condition of these things, including maintaining all investments to the best advantage of the beneficiaries.
Administering an estate is a major responsibility, and it would generally not be appropriate for a stranger of the deceased's to undertake it.
Distributing the property and assets
The Administrator must distribute the property and assets according the list prescribed by intestacy laws.
The law lists all the people your estate will be distributed to—the beneficiaries—and in what order, including spouses, children, parents, grandparents, and siblings.
According to intestacy laws in Victoria:
- If you leave a spouse or domestic partner, but no children — then your spouse or domestic partner will receive your whole estate.
- If you leave a spouse or domestic partner and children from that partnership — your spouse or partner will receive your whole estate. This is very different from the earlier provisions in Victoria, where the partner would take the first $100,000 and one third of the balance, with the remaining two thirds split amongst children.
- If you leave a spouse or a domestic partner, and a child or children from another partnership — your partner will receive all personal chattels, the statutory legacy (currently $451,909 - the statutory legacy is indexed each year for movements in the Consumer Price Index (Melbourne).), and half of the balance of your residual estate. Any children, including children of your current partner, will receive an equal share of the remaining half of your residual estate.
- If there is no spouse or domestic partner and no children — then your parents will receive your whole estate. If your parents have passed away, then your estate will be passed on to your siblings. If you have no siblings, then your surviving grandparents will receive your estate. If you have no surviving grandparents, then aunts, uncles, and then cousins will inherit your estate.
- In the event that none of the above mentioned family members can be found — the government will receive your entire estate.
It is also important to note that the estate will pay for all of the searches.
This list may generally reflect the wishes of the average person. However, a personal Will that clearly expresses your wishes and therefore reflects your own life and relationships will always be best.
Why you should make a Will
Writing a valid Will is the only way to ensure your wishes will be carried out after you're gone. Your estate is the result of a lifetime of hard work, so you should distribute it exactly how you wish to.
Intestacy laws provide a way of distributing your assets when your final wishes aren't known, so they probably don't represent your exact wishes.
What to do about intestacy
It's always best to make a will, but sometimes it's too late for that. If you have a relative who passed away without a Will, we can help you through every step of intestacy.
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