Every week in Victoria, people pass away without a will. Some ran out of time, others kept meaning to get around to it. Whatever the reason, the result is the same: the law steps in and decides what happens to their estate – not them, and not their family.
This is called dying intestate, and it happens more often than most people realise. It can also produce outcomes that catch families completely off guard, particularly in blended families or where the assets involved are anything other than straightforward.
What does it mean to die without a will?
Intestacy is the legal term for dying without a valid will. When it happens, the Administration and Probate Act 1958 (Vic) takes effect automatically, setting out how the estate must be distributed and leaving very little room for individual circumstances.
It’s also important to note that your will needs to meet specific legal requirements to be valid, so even if it’s mostly in writing, it may still be rendered invalid. If a document doesn’t comply, or if there are questions about whether the person had the capacity to make a will at the time of signing, it may be treated as no will at all, and the intestacy rules apply regardless.
What happens if you die without a will
This is the question most people want answered. The rules differ depending on your family situation.
If there is a partner and no children
Your partner receives the entire estate. This applies to married and de facto partners alike, including same-sex relationships.
If there is a partner and children from that relationship
Your partner still receives the entire estate. Children do not receive a share in this scenario.
If there is a partner and children from another relationship
This is where things get more complicated. Victorian law applies what’s called a statutory legacy, a threshold amount indexed annually. The threshold is currently ~$570,000 (through June 2026), but varies by year of death.
- If the estate is worth less than the statutory legacy, the partner receives everything.
- If the estate exceeds that amount, the partner receives all personal chattels, the first $573,640 (plus interest from the date of death), and half of whatever remains. The children from the other relationship share the rest equally.
If there is no partner
Your estate passes to your children in equal shares. If a child has already died, their share goes to their own children (the deceased’s grandchildren). If there are no children, the estate moves further along – to parents, then siblings, then more distant relatives. Beyond cousins, the estate passes to the Crown (the Victorian Government).
What counts as a “partner”?
In Victoria, de facto partners have the same entitlement as spouses. This includes same-sex relationships.
In some situations, there may be more than one person who qualifies as a partner. If that happens, the estate may be divided between them.
Here’s a quick example:
Mark dies without a will. He was in a de facto relationship with Sue and had two adult children from a previous marriage. His estate – mainly the family home – is worth $900,000.
Under intestacy, Sue would receive all personal chattels, including furniture, appliances, and cars. She also gets the first $573,640 plus interest, and half of the remaining $326,360 ($163,180). Mark’s children share the other $163,180 between them. That may not be what anyone expected – or wanted.
Note: This is general information only. Intestacy rules can be affected by the specific facts of your situation. Please seek advice from an experienced solicitor before drawing any conclusions.
What happens to your estate without a will?
Without a will, there is no executor. Nobody has automatic authority to deal with the deceased’s assets – not a spouse, not an adult child.
To administer the estate, someone must apply to the Supreme Court of Victoria for what’s known as letters of administration. This is similar to the probate process, but applies where no valid will exists. The process takes time and costs money, and in recent years, court backlogs have added to those delays. During that period, property can’t be sold, accounts can’t be easily accessed, and the financial pressure on a family can mount quickly.
For more on what’s involved in managing an estate, our article on who can be an executor of a will covers the key responsibilities.
The risks of dying without a will
The consequences of intestacy aren’t just administrative, they can affect family relationships and financial outcomes for years.
- No control over who receives your estate. The law follows a formula. That formula knows nothing about your relationships, your intentions, or your circumstances.
- Blended families face particular challenges. Where children from a previous relationship are involved, the distribution rules can produce outcomes that feel deeply unfair. Options like a life interest will which can balance a surviving partner’s needs with children’s entitlements, simply aren’t available without a will.
- No executor appointed. Without someone named to manage the estate, the process of getting someone authorised takes longer and costs more. It can also create disagreements within the family about who should step up.
- Increased risk of disputes. Where families disagree – about entitlements, the conduct of administration, or who qualifies as a de facto partner – things can become expensive and drawn out. Binding financial agreements can sometimes help reduce conflict in complex family situations, but they need to be in place well before the need arises.
Common situations where intestacy may cause problems
Certain situations tend to highlight the limits of intestacy rules.
Second marriages and blended families
A parent in a second relationship may expect their partner to be looked after first, with children benefiting later. Intestacy does not always produce that outcome.
Estranged family members
The law does not account for strained or broken relationships. Someone you have not spoken to in years may still have a legal entitlement.
Business ownership
If you own a business, intestacy can create uncertainty about control, succession, and decision-making.
De facto relationships
While recognised, de facto relationships can sometimes lead to disputes, particularly where there are competing claims.
Superannuation
Superannuation is not automatically part of your estate. It is usually dealt with separately by the fund trustee. Putting clear nominations in place can make a significant difference. Take a look at superannuation death benefit nominations to find out more about how this works.
Getting a plan in place
Dying without a will hands control of your estate to a set of rules that can’t account for who you are, who you love, or what you’ve built. The outcomes can be fair on paper and painful in practice.
The good news is that putting a plan in place is straightforward. If you’re unsure how these rules apply to your situation, or if your circumstances involve a blended family, a business, or assets held in different names, speaking with an experienced solicitor is the best place to start.
Chat with our team today and find out your options.
