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11 Sep INTESTACY LAW

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Has a loved one passed away with a valid Will? Let’s talk.

In Victoria, the Administration and Probate and Other Acts Amendment (Succession and Related matters) Act 2017 came into effect on 1 November 2017. The new legislation applies to deaths which occurred from 1 November 2017 onwards. For deaths prior to 1 November 2017, a different intestacy statutory scheme will apply. Please contact us for more information.

 

VICTORIA

As it currently stands, if you die without a valid Will, your Estate will be distributed in accordance with the intestacy statutory scheme as detailed below.

If the Deceased is…

Frequently Asked Questions

Survived by one *partner and no children

Surviving partner receives the entire estate

Survived by one *partner and child/ren

If the child/ren are that of the deceased and the surviving partner then the partner receives the entire estate. Mutual children will not benefit from the estate.

If the child/ren are that of the deceased alone and not the surviving partner, then the partner receives:

a) The personal chattels of the deceased

b) If the estate is more than the statutory legacy^, then $451,909 plus interest from the date of death until payment of the legacy and 50% of the balance of the rest of the estate

The child/ren will then receive the other 50% of the estate and if more than one child, equally between them.

Survived by more than one *partner and no children

If the deceased leaves no children but has more than one partner (i.e. a spouse and a registered caring partner) then the partners will receive the entire estate as follows:

a) If there is a distribution agreement then in accordance with that agreement;

b) If there is a distribution order, then in accordance with that order; OR

c) Failing an agreement then in equal shares between them.

For more information about a distribution order or distribution agreement, contact one of our experts to discuss further.

Survived by more than one *partner and child/ren
  • The partners will receive the chattels and the statutory legacy^ of $451,909 in accordance with:a) any distribution agreement between them;b) any distribution order made by the Court; ORc) failing any agreement then in equal shares between them.
  • The partners will also equally receive 50% of the balance of the estate
  • If there are child/ren that are of the deceased alone, then the child/ren will receive the remaining 50% of the estate in equal shares
Survived by no *partner

If the deceased died without a partner then the estate will be distributed to any surviving child/ren of the deceased, and if more than one, in equal shares.

If the deceased child/ren predeceased him or her then that child’s child/ren will receive their share (i.e. the grandchild who survived their parent will receive the share to which his/her parent was entitled) and if more than one, in equal shares between them.

Survived by no *partner and no children

If the deceased died without a partner or children then the estate will be distributed in accordance with the following hierarchy:

  • No surviving child: equal shares to the child/ren of that deceased child (i.e. deceased’s grandchild/ren) in equal shares
  • No surviving grandchild: equal shares to the surviving parents of the deceased
  • No surviving parents: equal shares to the surviving siblings of the deceased. If a sibling has predeceased leaving child/ren then the child/ren (niece or nephew) will take their parents’ share
  • No surviving siblings: equal shares to the surviving grandparents of the deceased
  • No surviving grandparents: equal shares to surviving aunt/uncle. If an aunt/uncle has predeceased leaving child/ren then the child/ren (first cousin) will take their parents’ share
  • No surviving relatives: the estate will be left to the Crown

 

*Partner means: Spouse, Domestic partner or Registered caring partner at the time of death

^Statutory legacy is currently $451,909 which changes each July and is published in the Government Gazette.

A person must now survive the deceased by 30 days to be considered a beneficiary of the intestate estate.

Dying without a valid Will may mean that your assets will not be distributed in accordance with your wishes. As seen from above, it may even pass to those whom you have little or no contact with if your immediate next of kin have predeceased you.

It is therefore important to ensure your true wishes are reflected in your last Will and testament. Leaving behind a well-constructed Will can also ensure that your estate is distributed in a timely and efficient manner.

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