Intestacy arises when a person dies without leaving a valid will. In such cases, the distribution of the deceased’s estate is governed by the intestacy provisions set out in the Administration and Probate Act 1958 (Vic) (“the Act”). This article provides an overview of the intestacy laws in Victoria, outlining the statutory framework, the order of distribution, and key considerations for legal practitioners.

Statutory Framework

The intestacy rules in Victoria are primarily contained in Part IA of the Administration and Probate Act 1958 (Vic). These provisions determine:

• Who is entitled to administer the estate (i.e., who may apply for Letters of Administration)

• How the estate is to be distributed among surviving relatives

Order of Distribution

The distribution of an intestate estate in Victoria depends on the family circumstances of the deceased at the time of death. The key scenarios are summarised below.

1. Deceased Leaves a Partner (Spouse or Domestic Partner) and No Children

If the deceased is survived by a partner and no children, the partner is entitled to the whole of the estate.

2. Deceased Leaves a Partner and Children

If the deceased is survived by a partner and children (issue), the distribution is as follows:

• The partner receives:

  • The personal chattels

  • A statutory legacy (currently $500,000, indexed annually)

  • Half of the balance of the estate

• The children receive the remaining half of the balance, divided equally among them

If the children are minors, their share is held on trust until they reach 18 years of age.

3. Deceased Leaves More Than One Partner

If the deceased is survived by more than one partner (e.g., a spouse and a domestic partner), the partners may agree on the division of the estate. If no agreement is reached, the court may determine the division, taking into account various factors such as the length and nature of each relationship.

4. Deceased Leaves No Partner but Has Children

If there is no surviving partner, the estate is distributed equally among the children. If a child has predeceased the intestate but left children of their own (i.e., grandchildren of the deceased), those grandchildren take their parent’s share.

5. Deceased Leaves No Partner and No Children

The estate passes to the next of kin in the following order:

1. Parents

2. Siblings (or their children, if a sibling has predeceased)

3. Grandparents

4. Aunts and uncles (or their children, if an aunt or uncle has predeceased)

5. The Crown (if no relatives can be found)

Letters of Administration

Where a person dies intestate, an eligible person (usually the next of kin) may apply to the Supreme Court of Victoria for Letters of Administration. This grants the applicant authority to administer the estate in accordance with the intestacy rules.

Key Considerations

• Domestic Partners: The Act recognises both married and de facto (including same-sex) partners. Evidence of a domestic partnership may be required.

• Adopted and Stepchildren: Adopted children are treated as natural children. Stepchildren are not entitled unless they have been legally adopted.

• Partial Intestacy: If a will does not dispose of the entire estate, the intestacy rules apply to the undisposed portion.

• Claims Against the Estate: Eligible persons may make a family provision claim under Part IV of the Act if they believe they have not been adequately provided for.

Conclusion

Intestacy laws in Victoria provide a clear statutory framework for the distribution of estates where no valid will exists.  Given the complexities that can arise, particularly with blended families or multiple partners, careful consideration of the Act’s provisions is essential as well as a proper advice from a lawyer  that has experience in the estate matters .