Dying without a will—or dying intestate—can leave your loved ones facing legal complexities, delays, and unintended outcomes. At Ebra Partners, we understand the importance of proactive planning to protect your legacy. In the state of Victoria, the absence of a valid will triggers a rigid legal framework under the Administration and Probate Act 1958 (VIC), which dictates how your estate is distributed.
Let’s discuss everything you need to know about what happens if you die without a will and why partnering with a wills and estates lawyer, like Ebra Partners, is a critical step to safeguarding your wishes.
The Intestacy Hierarchy: Who Inherits Your Estate?
When someone dies without a will, their assets are distributed according to Victoria’s intestacy laws. These rules prioritise immediate family members in a strict order, often overlooking personal relationships or modern family dynamics
- Spouse/Partner Priority: A surviving spouse or domestic partner typically inherits the entire estate if no children are involved. However, if children do exist—especially from prior relationships—the spouse receives the first $559,660 (as of 2024) and half the remaining balance, with the other half divided among the children.
- Children’s Share: If there’s no surviving partner, children inherit all assets equally. Grandchildren may step in if a child predeceases the parent.
- Distant Relatives or the State: Without immediate family, the estate passes to the parents or siblings or any extended family, which can include grandparents, aunts/uncles, and cousins. Although, if no relatives are found, the estate becomes bona vacantia (unclaimed property) and transfers to the Victorian government.
The Victorian law for any inherited estate is a hierarchy, leaving no room for friends, charities, or stepchildren (unless legally adopted). For blended families or unmarried partners, dying without a will risks excluding those you care about most.
The Administrative Burden: Letters of Administration
Without a will, your family must apply to the Supreme Court of Victoria for a Grant of Letters of Administration. This process involves:
- Proving no valid will exists.
- Identifying eligible beneficiaries under intestacy laws.
- Settling debts and taxes before distribution.
The administrator—often the designated next of kin—faces significant legal and logistical responsibilities. Disputes over who should administer the estate are common, delaying the process and escalating costs. At Ebra Partners, our wills and estates lawyers streamline this process, ensuring compliance and minimising family conflict.
Special Cases: Simultaneous Deaths and Superannuation
Intestacy becomes even more complex in unique scenarios:
- Simultaneous Deaths: If partners die together (e.g., in an accident), Victorian law presumes the younger survives the older. This impacts how estates merge and redistribute, potentially diverting assets to distant relatives.
- Superannuation and Trusts: Superannuation doesn’t automatically form part of your estate. Without a Binding Death Benefit Nomination (BDBN), trustees decide where your super goes—often ignoring non-legal dependents. It is essential to keep your BDBNs up to date to ensure your super is distributed according to your wishes. These nominations are generally valid for a maximum of three years and will lapse if not renewed.
These unique scenarios highlight why generic intestacy rules rarely align with individual circumstances.
Risks of Dying Intestate
- Delay in Authority: Unlike an executor named in a will who can act immediately, no one has authority to manage the estate until a grant of letters of administration is made, often causing delays.
- No Control Over Who Administers the Estate: The Administration and Probate Act 1958 doesn’t set out who should be appointed. Convention usually favours the principal beneficiary, who may be unsuitable or unprepared for the role.
- Fixed and Impersonal Distribution: The law applies a statutory formula that may not reflect the deceased’s wishes or provide adequately for certain family members. De facto partners can be excluded unless they meet certain criteria such as cohabiting for 2+ years or sharing a child.
- Financial Strain: Legal fees, court delays, and forced property sales (e.g., to pay children’s entitlements) can deplete the estate.
- Family Disputes: Relatives may contest distributions, especially in blended families or international contexts.
Ebra Partners Ensures Peace of Mind
At Ebra Partners, we combine legal precision with innovative solutions to protect your legacy:
- Tailored Wills: Craft wills reflecting modern relationships, including simultaneous deaths or superannuation provisions.
- Estate Planning: Integrate BDBNs, trusts, and tax-efficient strategies to preserve wealth for future generations.
- Dispute Resolution: Mediate conflicts and navigate probate efficiently, leveraging our deep expertise in Victorian estate law.
Avoid Intestacy—Plan Ahead With Ebra Partners
Dying without a will isn’t just a legal issue—it’s a missed opportunity to safeguard your loved ones. By partnering with Ebra Partners, you gain a trusted legal advisor dedicated to your family’s stability and growth.
Don’t leave your legacy to chance. Contact our wills and estates lawyers today to secure your future with confidence.