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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.
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.
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.
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:
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.
Assets that can be passed on from a deceased estate include:
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:
If there are no living relatives found, the estate will pass to the state government.
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.
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.
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My sister passed away 18 months ago and her partner just passed away. He had one son that he had never seen for 34 years. His son wants everything. I was a carer for him. My sister just wanted to know is if me and my three siblings are entitled to anything from the house,
Thank you.
Hi June,
Thanks for getting in touch with Finder. I’m sorry to hear about your loss.
Regarding your question, the division of assets goes through a number of levels, starting with the spouse and ending up with distant relatives. If the law of intestacy in Victoria would be followed, then after paying off debt, the remaining property would then be given to the son.
If you want to confirm, it would be a good idea to speak to a lawyer. This would also give you an idea of how to go about your situation.
I hope this helps. Should you have further questions, please don’t hesitate to reach us out again.
Have a wonderful day!
Cheers,
Joshua