What happens when someone dies without a Will in Victoria?

Published 18 Dec 2018

Author: David Cossalter

In Victoria, if a person died without creating a Will or they do not have a valid Will, they die intestate. If this happens, the courts then make decisions about the estate and oversee asset distribution.

Below is a look at next steps if someone dies intestate.

Hierarchy of heirs

The first step when someone dies intestate in Victoria is an application for a Grant of Letters of Administration to the Supreme Court. This is usually made to the spouse, child or other close kin to the deceased person.

If the deceased has no living relatives, the court would rule that the assets be passed to the Victorian government. However, if there are living relatives, there's a hierarchy in place that determines how the assets are split up. In Victoria, these laws changed on 1 November 2017, as follows.

  • Spouse or partner. If a spouse or partner was left behind, the estate would go to that person. This applies to domestic or de facto relationships, where the couple has been living together for at least two years or has a child together. Both same-sex and heterosexual couples would fall under this law.
  • Children. Any children of the deceased would be next in line. They may also receive some of the estate if both a spouse and children exist. Of course, these determinations are made based on several factors, including how much money is in the estate. Children may not get a portion if there is less than $500,000 in value left in the estate after debts and funeral expenses are paid.

If there isn't a spouse and there are no children, next in line would be, in order, the deceased's:

  • Parents.
  • Siblings.
  • Grandparents.
  • Uncles/aunts.
  • Cousins.

Having several interested parties after a person dies often creates conflict between family members, and assets can get held up in court.

Why create a Will?

Creating a Will is a good idea so that the fate of your estate is not left up to the court to distribute. Under a Will, you can designate an executor and outline your wishes for your assets after you're gone.

Not doing so will ensure that you die intestate and this may cause complications for your loved ones left behind.

When you're ready to discuss your Will in Victoria, or have questions about contesting a Will, get in touch with us at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers. We can guide you through the legal process and help you protect your estate.

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