What happens if you die without a will in Victoria?

If someone dies without a will, then they have died "intestate". This means that the assets of the person who has died are handled by the state government. When this happens, there are laws in place, with a clear order of operations for inheritance, to make sure descendants and partners can get the assets to which they are entitled.

Here's what'll happen if you die without a will in Victoria.

Dying without a will in Victoria

If you die without a will in Victoria, in legal terms your death is classed as intestate. What this means is that your assets, debts and possessions are not distributed as you may have hoped, but instead according to a legal formula created by the Victorian government. If this occurs to you or a close loved one, then you – or a lawyer on your behalf – will need to submit an application for a Grant of Letters of Administration. In most cases, the grant goes to the deceased's next of kin – usually their spouse or child.

You don't need a lawyer to write a will, though it is recommended. You can find out more about how to write a will here.

Intestacy rules in Victoria

In Victoria, if all of a person's property is not disposed of by a will when they die, they leave what is referred to as "intestacy". This is often what happens if you die without a will, your will is not valid or your will only disposes of some of your assets. In Victoria, the deceased person's assets usually go to the next of kin, but if they don't have a partner, child or any other relative, their assets go to the State of Victoria.

If there's no will, who inherits the estate?

The first people who get taken care of, both by a will and by intestate assets, are people who are owed money. All debts need to be repaid including the following:

1. Funeral expenses
2. Taxes
3. Debts to any financial institutions or other lenders
4. Any outstanding administrative or legal expenses.

After this, any assets listed in a will are distributed as specified. Anything not mentioned in a will is then distributed according to the intestate laws.

What kind of assets get passed on?

Assets that can be passed on from a deceased estate include:

Will my spouse automatically inherit everything in Victoria?

Yes. In Victoria the spouse or de facto partner automatically inherits the whole estate. If there were also children from another relationship then some of the estate may go to those children, depending on how much money was left behind. This only happens if there is still around $500,000 in the estate after all debts and funeral expenses have been paid.

If the deceased had no will and no partner, the estate will be distributed to relatives in this order:

If there are no living relatives found, the estate will pass to the state government. These rules applies to anyone who died after November 2017.

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What is a grant of administration?

In order to properly distribute assets, someone needs to be appointed as an estate administrator. This person is responsible for making sure the estate is distributed correctly in line with the rules set out above. To become an estate administrator, you will need to apply for a grant of administration from the courts. This is essentially a notice which lets you withdraw the deceased's funds from banks, pay back creditors on their behalf and otherwise manage the finances as needed.

Generally, the only people who can get a grant of administration are those who have good reason to get one, such as a lawyer hired by an inheritor or someone in line to get a portion of the estate.

Applications need to include detailed information about the estate, and the administrator will have to do a lot of groundwork before they can get access to the deceased's property in order to distribute it. Unless you're confident in the application process and your ability to track down any eligible inheritors, it's generally a good idea to use a lawyer.

How to apply for a grant

In order to get a grant of administration, you will need to prove that you have satisfied all of the following steps. A wills lawyer can do the following on your behalf.

Conduct a search for a will

You still need to do this even if the deceased has said there isn't one. Check all their papers, their bank, any solicitors or accountants they might have used and any likely trustee companies. Your search should also be publicised.

Get certificates

Get a death certificate and proof of your relationship to the deceased.

Lay out entitlements

Your application needs to outline who is entitled to a share of the assets under intestate law in Victoria.

Advertise your intention to apply

You need to advertise your intention to apply for a grant of administration on the state registry. It will take at least two weeks before you hear back. This is so other people with an interest in the estate, such as creditors and other eligible relatives, have an opportunity to get involved.

File the paperwork

After these steps, you can file an application for a letter of administration.

Frequently Asked Questions

• What if I have stepchildren or foster children in Victoria?

  Under Victorian intestacy laws, stepchildren and foster children generally do not have an automatic right to inherit from your estate. The law prioritises biological or legally adopted children. If you wish to provide for stepchildren or foster children, you must include them specifically in a valid will.

• What happens to my superannuation if I die without a will?

  Superannuation is often not considered part of your general estate and is distributed according to your super fund's trust deed and any binding death benefit nomination you may have made. If you have no valid binding nomination, the super fund trustee will decide who receives your super balance. This decision is made independently of your will or intestacy rules.

• What happens if I am separated but not divorced when I die in Victoria?

  If you are legally separated but not yet divorced, your estranged spouse may still be entitled to inherit from your estate under Victoria's intestacy rules. Divorce formally ends a spouse's entitlement to inherit unless specified in a will. It is crucial to update your will or create one if you separate from your partner.

• How long does it take to finalise an intestate estate in Victoria?

  Finalising an intestate estate can be a lengthy process, often taking many months or even years. The administrator needs to identify all potential beneficiaries, trace assets, apply for a Grant of Letters of Administration, and advertise the intention to apply, which all add to the timeline. Estates with a valid will are typically processed more quickly.

• Can I prevent the state government from inheriting my assets in Victoria?

  Yes, the most effective way to prevent the state government from inheriting your assets is to create a valid will. A will allows you to clearly specify who you wish to receive your property. If you die without a will and no living relatives can be found under the intestacy rules, your assets will pass to the State of Victoria.

• What happens to assets owned jointly if I die without a will?

  Assets owned jointly, such as a joint bank account or property held as joint tenants, generally pass directly to the surviving joint owner. This happens regardless of whether you have a will or if your estate is subject to intestacy rules. These assets do not form part of your estate for distribution purposes.

• Can an intestate estate distribution be challenged in Victoria?

  Yes, it can. Certain eligible people, such as family members or financial dependants who believe they have not been adequately provided for, may apply to the Supreme Court to make a family provision claim. This can add significant time and cost to the estate administration.

• Do my pets inherit anything if I die without a will in Victoria?

  No, pets cannot directly inherit assets under Victorian intestacy laws. Without a will, your pets will typically become the responsibility of your next of kin who inherits your estate. A will allows you to make specific arrangements for the care of your pets and even allocate funds for their ongoing support.

Written by

Gary Ross Hunter

Journalist

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Gary Ross Hunter has over 6 years of expertise writing about insurance, including life, health, home, and car insurance. Having reviewed hundreds of product disclosure statements and published over 800 articles, he loves simplifying complex insurance topics for everyday readers. Gary has contributed to major outlets like Yahoo Finance, The Sydney Morning Herald, and news.com.au, and holds a Bachelor of Arts (Honours) in English Literature from the University of Glasgow, along with a Tier 2 General Advice certification, ensuring his work adheres to ASIC’s RG146 standards. See full bio

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