What happens if you die without a Will?

Unfortunately, many people pass away without an effective Will in place. This often happens due to the mistaken belief that, for one reason or another, a Will is not necessary. [1]

In reality though, nothing could be further from the truth – everybody should have a legally valid Will that reflects their wishes.

What is intestacy?

When a person passes away without a Will, they are generally said to have died ‘intestate’.

To determine what to do with the assets of a person who passed away intestate, we must look to Part IA of the Administration and Probate Act 1958 (Vic).[2] This part sets out who will be entitled to inherit the deceased person’s assets.

Unsurprisingly, the intestacy provisions largely follow community standards and expectations as to who should be entitled to inherit, with the domestic partner of the deceased first in line, followed by the deceased’s children. Complications, however, can arise when the deceased had more than one domestic partner, or children with one domestic partner, but not another. A very careful assessment of the intestacy provisions must be made in such circumstances. 

What if there is no partner or children?

In the event the deceased passed away without a surviving domestic partner or children, the intestacy provisions provide for the closest next-of-kin to inherit, in a cascading manner. [3]

Should the deceased be survived by one or more parents, then the parents are entitled to share the deceased’s assets equally.[4] Should the deceased leave no surviving parents, then the deceased’s surviving siblings will be next in line, followed by any surviving nephews and nieces, then grandparents, aunts,  uncles, and finally, cousins.

If a deceased has no living parent, sibling, nieces or nephews, grandparents, aunts, uncles or cousins, then the deceased’s assets will pass to the Crown (i.e. the government).[5]

Does blood matter?

When assessing those who may be in line to inherit from an intestate estate, it is important to remember that the law will apply a strict interpretation to the various family relations.

In other words, while a deceased person may have referred to somebody as ‘uncle’, they will only be deemed an ‘uncle’ in the eyes of the law if they are, technically speaking, an ‘uncle’ (that is, a brother of one of the deceased’s parents). [6]

How Can DSA Law Help?

If you are seeking advice regarding Intestacy and believe you could benefit expert legal assistance, please Contact Us or one of our Wills & Estate Lawyers at DSA Law on (03) 8595 9580.

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[1] For more information regarding Wills, see our articles, Common misconception about Wills, and What is a Will, and why it’s important to have a Will?.

[2] Administration and Probate Act 1958 (Vic) pt IA div 3-5.

[3] Ibid ss 70ZF-70ZK.

[4] Ibid s 70ZI.

[5] Ibid s 70ZL.

[6] Ibid s 3.