If someone dies without a will in Victoria, their estate is distributed under the Administration and Probate Act 1958 (Vic) — not according to their wishes. This article explains how intestacy laws work, who inherits in different family situations, and why having a valid will is the best way to protect your loved ones.
Understanding intestacy
When a person dies without a valid will, they are said to have died intestate. In this situation, Victorian law decides how their estate is divided. Even if someone has a will but it doesn’t deal with all of their assets (known as partial intestacy), those remaining assets are distributed under the same legal rules.
While intestacy laws aim to be fair, they often produce results that families find unexpected or distressing — especially in blended families or where partners are separated but not divorced.
Who administers the estate?
If there is no will, an eligible person — usually a partner or adult child — must apply to the Supreme Court of Victoria for Letters of Administration.
This grant gives legal authority to:
- Collect the deceased’s assets
- Pay debts and expenses
- Distribute what remains according to intestacy laws
Until this grant is received, family members have no legal access to bank accounts, property or other assets of the deceased.
It is also important to understand that intestacy does not appoint an executor or a guardian for minor children. This can cause disputes about who will manage the estate or care for the children, adding further stress at an already difficult time.
This process can take longer and be more complex than probate for a valid will, particularly where there is family conflict or uncertainty about who should act.
Who inherits under Victorian intestacy laws?
The Administration and Probate Act 1958 (Vic) sets out a strict order for how estates are distributed depending on who survives the deceased. The following scenarios outline how assets are divided in Victoria.
Scenario 1: One partner and no children
If there is a surviving spouse or de facto partner and no children, the partner inherits the entire estate.
Example:
James dies without a will. He is survived by his wife, Laura, and no children. Laura receives all of James’s assets — including their home, superannuation entitlements, and personal belongings.
Scenario 2: One partner and children with that partner
If all children are from the same relationship, the partner inherits the whole estate.
Example:
David and Emma are married with two children. David dies without a will. Emma inherits everything, as the law assumes she will continue to support their children.
Scenario 3: One partner and children from another relationship
When a person has children from a previous relationship, the estate is divided between the partner and those children.
- The partner receives all personal belongings, the statutory legacy (approximately $573,640 as of October 2024, indexed to inflation), and half of the remaining estate.
- The other half of the remaining estate is divided equally among the children who are not the partner’s.
- If the estate is smaller than the statutory legacy, the partner receives everything.
Example:
Maria dies without a will. She is married to Tom and has two adult children from a previous marriage. Her estate is worth $900,000. Tom receives Maria’s personal belongings, $$573,640 as the statutory legacy, and half of the remaining $340,340. Her two children share the other half equally — about $85,085 each.
Scenario 4: Multiple partners
If a person leaves more than one recognised partner — for example, a legal spouse and a de facto partner — both may be entitled to a share.
The partners can:
- Agree on how to divide their entitlement; or
- Apply to the Supreme Court of Victoria to determine their shares.
Example:
Peter dies intestate. He was still legally married to Joanne but had been living with his de facto partner, Rachel, for four years. The Court finds both women qualify as ‘partners’ under the Act. They share the partner’s portion of the estate, while Peter’s children divide what remains.
Scenario 5: No partner, but surviving children
If there is no partner but there are children, the children share the estate equally. If a child has already died, their share passes to their children (the deceased’s grandchildren).
Example:
Linda dies without a will, leaving three children — Sophie, Mark and Chloe.
Chloe predeceased her mother but left two children. Sophie and Mark each receive one-third of the estate, and Chloe’s children share her one-third share equally.
Scenario 6: No partner and no children
If there is no partner or children, the estate is distributed in the following order:
- Parents
- Siblings (or their children)
- Grandparents
- Aunts and uncles (or their children)
- First cousins
If none of these relatives (1–5 above) are alive, the estate passes to the State of Victoria (bona vacantia).
Example:
Evelyn dies intestate, never married, and has no children. Her parents are deceased, but she has one surviving brother. Her brother inherits her entire estate.
Scenario 7: Separated but not legally divorced
If you are separated but not divorced, your estranged spouse remains your legal partner for intestacy purposes.
If you die without a will:
- Your estranged spouse receives your personal belongings, the statutory legacy, and half of the remaining estate.
- Your children share the other half equally.
Example:
Sarah separated from her husband, Mark, five years ago but never divorced. They have two children together.
Sarah dies intestate with an estate worth $700,000.
Mark receives $559,660 plus half of the remaining $140,340.
The two children share the other half equally — around $35,085 each.
Even though Sarah and Mark were separated for years, he remains legally entitled to the majority of her estate.
Scenario 8: Divorced but with children
Once a divorce order takes effect, your former spouse is no longer your partner for intestacy. Your children will inherit your entire estate equally.
Example:
Jane is divorced with two children, Emily and Noah. She dies intestate with an estate of $600,000. Emily and Noah each inherit $300,000.
If there are no children, the estate passes to other relatives according to the standard intestacy order.
Scenario 9: Separated but in a new de facto relationship
If you are separated (but not divorced) and in a genuine de facto relationship, both your estranged spouse and your de facto partner may qualify as “partners” under the Act.
They would share the partner’s portion, while your children share the remainder.
Example:
Michael separated from his wife years ago but never divorced. He has two teenage children with her and now lives with his partner, Anna.
When Michael dies intestate, both women are recognised as partners.
They share the partner’s portion of the estate, while the children divide the remainder.
The outcome is complex — and not what Michael likely intended.
Scenario 10: Former de facto partners (after separation)
If you were in a de facto relationship but later separated, your former partner is no longer considered your legal partner under intestacy law. They do not inherit any part of your estate.
Example:
Alex and Jordan were in a de facto relationship for five years but separated 18 months before Alex’s death.
Alex dies without a will, leaving no children.
Because the relationship had ended, Jordan is not recognised as a partner, and Alex’s estate passes to his parents.
If there is disagreement about whether the relationship had truly ended, the Supreme Court of Victoria may review the evidence and decide.
The statutory legacy
The “statutory legacy” is the fixed amount a partner receives before other beneficiaries are considered. This amount is indexed each year based on the Consumer Price Index (CPI). As of October 2024, the statutory legacy is approximately $573,640, plus interest from the date of death.
Common challenges under intestacy
Even though intestacy laws provide a formula, issues often arise such as:
- Proving a de facto relationship or separation
- Conflicts between current and former partners
- Delays in obtaining Letters of Administration (during which assets are frozen)
- Stepchildren being excluded if not legally adopted
- No appointment of guardians for minor children
- No consideration of tax effectiveness or superannuation: the law does not take into account whether the distribution is tax-efficient, and superannuation benefits may not form part of the estate or follow the intestacy rules
- Family trusts: wills can pass control of family trusts, but this is not included in an intestacy — meaning key business or trust assets may be left without clear management
- Emotional strain for families already coping with loss
Case insights
Re Smith [2021] VSC 123 – de facto partners and entitlement
The Supreme Court of Victoria held that a long-term de facto partner was entitled to inherit under intestacy because the relationship was genuine and ongoing, despite the absence of marriage.
Re Estate of Thompson [2019] VSC 450 – family disputes over administration
Two adult children from different relationships both applied to administer their father’s intestate estate. The Court emphasised that administrators must act in the best interests of all beneficiaries, not their own.
Key takeaways
- Intestacy laws determine who inherits when there’s no valid will in Victoria.
- The Administration and Probate Act 1958 (Vic) governs the process.
- Partners and children are first in line, but separated spouses can still inherit.
- Stepchildren are not automatically entitled.
- The statutory legacy (approx. $573,640) protects surviving partners.
- No executors or guardians are appointed under intestacy.
- Family members have no access to assets until a grant of Letters of Administration is made.
- The law does not consider tax efficiency, superannuation entitlements or control of family trusts.
- A valid, up-to-date will is the only way to ensure your wishes are carried out.
How MST Lawyers can help
At MST Lawyers, our Wills & Estates team provides tailored advice to help you protect your assets and your family. We assist with:
- Drafting and updating wills
- Estate disputes and contested estates
- Powers of attorney
- Estate administration and probate
If you’ve recently separated, blended your family, or haven’t updated your will, now is the time to act.
Contact MST Lawyers for practical guidance and peace of mind.
FAQs
Is there such a thing as divorce for de facto couples?
No — divorce only applies to people who are legally married. De facto couples simply separate when they stop living together on a genuine domestic basis, but they still have similar rights and responsibilities around property, superannuation and maintenance.
Under the Family Law Act 1975 (Cth), these matters must usually be resolved within two years of separation. For intestacy, a de facto partner can inherit like a spouse — but only if the relationship still existed at the time of death.
Can overseas relatives inherit?
Yes. Residency doesn’t affect entitlement — overseas relatives can still inherit under Victorian law. Once a Grant of Letters of Administration is issued, the administrator can transfer funds internationally after verifying identity and meeting tax and compliance requirements.
What if my parents have passed away?
If both parents have died, the estate passes to the next living relatives under the Administration and Probate Act 1958 (Vic):
- Siblings (or their children)
- Grandparents
- Aunts and uncles (or their children — the deceased’s cousins)
If no relatives can be found, the estate passes to the State of Victoria (bona vacantia).
