Intestacy rules in Victoria

Intestacy rules in Victoria

Definition of intestacy

Intestacy occurs when a person passes away without leaving instructions about who should be given their property. This can occur in three different ways, namely if a person:

1. Dies without a will.
2. Dies with an invalid will.
3. Dies with a will which does not deal with all of their property. This is called a ‘partial intestacy.’

Order of distribution under the Administration and Probate Act 1958

In Victoria, intestacy rules set out in the Administration and Probate Act 1958 determine how a deceased intestate person’s assets should be dealt with. It is beyond the scope of this article to deal with all different types of situations that could be encountered. We have therefore limited our analysis to the following, more common, scenarios:

1. Deceased passes away with a partner – the partner is entitled to receive the entire estate.
2. Deceased passes away with a partner and with children they had with the partner – the partner receives the personal chattels (household goods, jewellery and similar items) plus $100,000. The remainder of the deceased person’s estate (if any) is split one third in favour of the partner and two thirds with the children of the partner. If the deceased estate is worth less than $100,000, the partner receives the entire estate.
3. Deceased passes away with multiple partners and either with children of those partners or with no children of those partners – the partners will have an equal entitlement to the deceased’s estate, unless the Supreme Court makes a different distribution order if it considers fair to do so, or unless the partners enter into a distribution agreement with each other that provides for different entitlements.
4. Deceased passes away without a partner but with children – the deceased estate will be divided equally between the deceased’s children.
5. Deceased passes away without a partner and without children – in these circumstances, the estate would be distributed in the following order:

a. Parents of the deceased;
b. Siblings of the deceased;
c. Deceased’s grandparents;
d. Children of deceased siblings;
e. Aunts and uncles of the deceased;
f. Cousins.

If a person passes away without any living relatives, the assets of the deceased would revert to the State.

Letters of administration

In circumstances where a person passes away without a will, it will be necessary for their next of kin (usually a partner if there is one, or in their absence, the children if any) to apply for what is known as ‘letters of administration’ from the Supreme Court of Victoria.

This is a process that has some similarities with probate applications. The letters of administration process likewise involves advertising an intention to make the application with the Supreme Court, and allowing 14 days to elapse before making the application. As with probate applications, the applicant to letters of administration needs to file an affidavit in support of the application exhibiting a copy of the death certificate and an inventory of the deceased’s assets and liabilities.

If the application for letters of administration is successful, an order will be made by the Supreme Court appointing the applicant as administrator of the estate. Once such an order is made, the administrator can administer and deal with the assets of the deceased in a similar manner to an executor under a grant of probate.