What Happens if You Die Without a Will?

Dying without a valid will — known as dying intestate — can create significant legal complications for your loved ones. Learn what happens to your estate and how Australian intestacy laws apply.

Disclaimer: This article provides general information based on Australian law and is not legal advice. Laws and policies change — contact Ebra Partners for advice specific to your situation.

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 parents, siblings, or extended family including grandparents, aunts/uncles, and cousins. 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.

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.

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: 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. 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 can deplete the estate.
• Family Disputes: Relatives may contest distributions, especially in blended families or international contexts.

Avoid Intestacy — Plan Ahead

Dying without a will isn't just a legal issue — it's a missed opportunity to safeguard your loved ones. By planning ahead with a valid will, tailored estate plan, and updated Binding Death Benefit Nominations, you can ensure your wishes are honoured and your family is protected.

Don't leave your legacy to chance. Contact our wills and estates lawyers today to secure your future with confidence.

Need personalised advice? Contact Ebra Partners on 1800 845 143 or visit us at 1059 Mt Alexander Road, Essendon VIC 3040 for a free initial consultation.