Intestacy in Victoria is the situation which occurs when someone dies and there is no legal record of what should happen to their property. This can happen in one of three different ways – they die without a will at all, they die with a will but for some reason it is invalid or they left a will, but it did not include all the current property.
The relevant estate means any property left over after any funeral/burial and other expenses have been paid. The process for intestacy in Victoria is regulated under the Administration and Probate Act 1958.
Division 6 of the Administration and Probate Act 1958 sets out the basic rules that explain who gets a share of the estate when someone dies intestate. This depends mostly on whether there was a spouse or de facto partner (and you should refer to the Family Law Act as to whether a de facto relationship exists) and offspring.
You should note that the Administration and Probate Act refers to offspring/children as ‘issue’.
An explanation of the rule, using only partners and offspring (‘issue’), is outlined below.
|Only one partner:||The partner is entitled to all of the estate (regardless of other relatives)|
|Only one partner, but with issue:||Partner gets the personal chattels (household goods and the like) and $100,000. The rest is split one third to the partner and two thirds divided equally among the issue. If the estate is worth less than $100,000, the partner gets all of the estate. In addition, while spouses do not have an automatic right to the matrimonial property, they do have a right to purchase it.|
More than one partner
In these cases, it will depend on how long the unregistered domestic partner lived continuously with the intestate. The unregistered partner gets a proportion of the registered partner’s share as follows;
|Lived with intestate for less than 4 years continuously*:||One-third share|
|Lived with intestate for between 4 years and 5 years continuously:||Half share|
|Lived with intestate for between 5 years and 6 years continuously:||Two thirds share|
|Lived with intestate for more than 6 years continuously:||All|
*Unless the unregistered domestic partner parented a child with the intestate deceased, there is an added requirement of two years’ minimum co-habitation.
No partner but children (issue)
In cases of intestacy in Victoria where a person dies without a valid will and with no partner but with children, the estate is divided equally among them.
No partner or children (issue)
In cases where there is no partner or children to distribute the estate to, the estate will be distributed in the following order:
- Mother and father
- Children of deceased siblings
- Aunts and uncles
- Cousins/grand nieces and nephews of deceased siblings.
In these cases the estate is divided equally among surviving relatives in that category. For example in cases where just one parent is alive, that parent would be entitled to the entire estate. In the unlikely event someone dies without any living relatives to take over their estate, the estate then becomes the property of the State of Victoria under section 55 of the Act. The Minister for Finance can then decide to distribute the property to any relevant person, whether related or not.
An administrator deals with the estate when there is no executor. This may also occur if there is a listed executor, but that person has died, is no longer competent or is unwilling. (The State Trustees of Victoria can also act under application to administer the estate). In such instances, the application will be made for “Letters of Administration with the Will Annexed”. The administrator must be next of kin (that is, someone who would stand to be a beneficiary of the estate under the laws mentioned above) and in the same order.
In order for the estate to be legally disposed of, an Administrator needs to be appointed by the Supreme Court of Victoria. This can be done by making an application to the court but before doing so, you should search to see whether a will has been created and stored somewhere. This could be with the person’s solicitor, in a safe or with the Victorian Wills Bank.
To apply, you must advertise your intention to apply for letters of administration with the Registrar of Probates of the Supreme Court. After 14 days have passed you can then submit the proper forms and affidavits (and Will if applicable) to the probate office. If you are successful, the grant will be issued to you within five to ten business days.