What happens when you die without a Will in Victoria?
When someone dies, they often leave behind property, assets and – occasionally – debt. This is known as their ‘estate’. In order to manage and finalise the estate, all property and assets must be collected, debts paid, and assets distributed. If there is one, the assets are distributed according to the Will, but sometimes, people pass away without a Will.
Legally, when someone passes away without a valid Will, they have died intestate. This means that their assets are distributed according to a legal formula laid out by the Victorian government in Part IA of the Administration and Probate Act 1958 (VIC). These are known as the laws of intestacy and are based on the deceased’s relationships at the time of their passing.
When someone dies intestate because they have left either no Will, or an invalid Will, their assets usually go to their closest next of kin, but if they don’t have a partner, children, or other relatives, their assets go to the State of Victoria.
What to do when someone dies without a will?
The first thing to do is establish what assets and liabilities the deceased person had, and then apply for a Grant of Letters Administration to administer the estate.
Letters of Administration (LOA) are issued by the Supreme Court of Victoria to a person who is entitled to benefit from the estate, usually the deceased’s closest next-of-kin. This person is appointed Administrator of the estate.
The Grant of LOA gives the Administrator the right to deal with the estate of the person who died intestate and proves legal authority to asset holders and other institutions.
What happens after Letters of Administration are granted?
LOA appoints an Administrator of the estate. Generally speaking, the Administrator is responsible for:
- Collecting all property and assets
- Paying any debts
- Distributing the assets according to the laws of intestacy.
Assets may include:
- Real estate
- Money in bank accounts
- Aged-care bond (RAD)
- Personal possessions
- Life insurance
- Motor vehicles
Debts may include:
- Credit cards
- Costs incurred by the Administrator or other persons to finalise the deceased estate – i.e. funeral costs, legal expenses, ongoing bills
Who is entitled to a deceased person’s assets when they die without a will?
Victoria changed its intestacy laws in 2017. From 1 November 2017, the entire estate of the deceased goes to their spouse or domestic partner (partner) as long as there are no children from other relationships.
Where the deceased did not have a partner, entitlement is according to the following hierarchy:
- Aunts and Uncles
Partners and Children
Where the deceased leaves a partner and they had children with that person only, the partner takes the whole of the deceased’s estate. The children do not have a separate entitlement.
Where the deceased leaves a partner as well as children from other relationships, the estate is distributed accordingly:
- The partner takes:
- The personal chattels; and
- The first $451,909 (the statutory legacy); and
- Interest on the statutory legacy from date of death to payment; and
- One half of the balance of the estate.
- The children from other relationships are entitled to the other half of the balance of the estate in equal shares.
- If the estate value is less than the statutory legacy, the partner takes the whole estate.
- If the deceased leaves more than one partner, then the partners – in the absence of a distribution order or agreement – will take the partner’s share equally among them.
If no living relatives are located, the estate is passed on to the Victorian government.
When a beneficiary dies before the Will maker (testator) and the Will is not updated accordingly, this may create a partial intestacy.
This means the assets that the deceased beneficiary was entitled to are distributed according to the law of intestacy.
Applying for Letters of Administration when someone has died without a Will in Victoria can be overwhelming and technical. There is a lot of law to navigate, and the application must comply with the Supreme Court’s strict requirements.
At Probate Consultants, we make applying for LOA fast, affordable and extremely easy. With unlimited access to your dedicated consultant, clear and accessible information is always on offer to help you stay completely informed when dealing with an intestacy in Victoria.