What happens if you die without a will in Victoria
The ins and outs of what happens if you die without a will in Victoria
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If someone dies without a will, or if their will leaves some possessions unaccounted for, 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.
This guide explains intestacy and what happens 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. If you want to avoid the complicated issue of dying without a will and ensure that your assets go where you want them to, you need a will. 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 is 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:
- Funeral expenses
- Debts to any financial institutions or other lenders
- 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 are passed on?
Assets that can be passed on from a deceased estate include:
- Real estate, for example any property or land owned by the deceased
- Money in bank accounts
- Shares, for example investments in stocks
- Personal possessions
- Income, for example active income, passive income and portfolio income
Does a spouse automatically inherit everything in Victoria?
In November 2017, Victoria changed the rules of distribution for a person's estate if they die without a will. These rules do not apply to any person who died before that date. If the person died and left behind a partner either married or de facto, the entire estate will go to that partner. 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:
- Uncles and aunts
If there are no living relatives found, the estate will pass to the state government.
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 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 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.
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