When a person dies without a Will, their estate – comprising of their personally owned assets – is distributed according to the laws of intestacy (or commonly, the ‘intestacy provisions’). Depending on one’s circumstances, this can be distant relatives they’ve never met, or even the Crown.
In Victoria, the Administration and Probate Act 1958 (Vic) is the legislation that outlines the intestacy provisions. We have put together a helpful guide to the intestacy provisions, which includes the following:
Deceased leaves a partner
A partner in this context means a spouse or a domestic partner. If the deceased leaves a partner and there are no children, then the partner will receive the entirety of the estate.1 Should the deceased leave a partner and surviving children with that partner, then the partner will still be entitled to the entirety of the estate.2 Where the deceased leaves a partner and children from a previous relationship, the partner will receive the deceased’s chattels, a statutory legacy (which was $559,660 in October 2024)3 and one half of the balance of the estate, with the other half to be shared equally between the deceased’s children.4
Deceased leaves children but no partner
If the deceased leaves children but no partner, then the surviving children will equally share the estate. If a child predeceased the deceased, any surviving children they have will equally receive their parent’s share.5
Deceased leaves no partner and no children
In the event that the deceased leaves no partner or children, then the following hierarchy applies:
- Parents: Surviving parents receive equal shares of the estate.6
- Siblings: Surviving brothers and sisters receive equal shares of the estate except in circumstances where a deceased sibling had children of their own. The predeceased sibling’s share would be equally shared between their own respective children, should there be any.7
- Grandparents: Surviving grandparents receive equal shares of the estate.8
- Aunts and Uncles: Surviving aunts and uncles receive equal shares of the estate except in circumstances where a deceased aunt or uncle had children of their own. The predeceased uncle or aunt’s share would be equally shared between their own respective children, should there be any.9
What about friends?
In many cases, friendships can be stronger than family relationships. Despite this, under the intestacy provisions, friends do not benefit.
What happens if there are no family members found?
If no family members are found, the assets of the deceased will pass to the Crown.10 There are some complexities that can arise, especially if potential distant family members cannot be verified. This was evident in a judicial advice application made by the State Trustees, where they were unable to verify if there was a relationship between the deceased and what appeared to be his father.11
Facts
Leslie Norman John Sholl (‘Leslie’) died without leaving a Will, spouse, children or any maternal relatives. His estate was worth approximately $550,000. The State Trustees conducted extensive inquiries into the Leslie’s history, including genealogical investigations and it was unclear whether he left any surviving family members.
During investigations, they uncovered various public records and a newspaper article which raised queries as to whether a relationship of father and child existed between Leslie and Leslie Norman Bull (‘Mr Bull’).
In 1946, Mr Bull got married however some four years later, Mr Bull married Joan Mary Sholl (‘Ms Sholl’). Shortly thereafter, Ms Sholl gave birth to Leslie but there was no record of the name of the father listed on the birth certificate. On 2 March 1953, a newspaper article appeared in the local paper which confirmed Mr Bull had pleaded guilty to a charge of bigamy, that being, the crime of marrying someone whilst still being legally married to someone else, making his marriage to Ms Sholl void. There was no direct evidence whether Ms Sholl and Mr Bull conceived Leslie during their marriage or if Mr Bull was even the father however, the fact that she named her child ‘Leslie Norman’, being Mr Bull’s first two names, suggested a connection.
Decision
The presumption at general law is that a child born or conceived during a marriage is the child of the husband of the mother, however this does not apply where the marriage is not valid. The issue the Court had was that despite Mr Bull pleading guilty to a charge of bigamy, there was no evidence of an annulment or dissolution of marriage with Ms Sholl. This ultimately led to the Court deciding that Mr Bull was Leslie’s father. Whilst Mr Bull was deceased, he had living relatives in England, making them beneficiaries of Leslie’s estate.
Important considerations
Ultimately, in the absence of a Will and clear family connections, the assets of a deceased person may either pass to distant relatives or, in the absence of any verifiable family, to the Crown. This highlights the importance of making a valid Will to ensure that one’s estate is distributed according to their wishes, avoiding the uncertainties that arise when intestacy laws come into play.
It is also important to remember that the intestacy provisions only relate to the personally held assets of the deceased person, and therefore do not automatically apply to other interests the deceased may have had, including in superannuation, trusts or jointly held assets. Separate rules apply to the succession of these interests.
How we can help
The Wills, Estate Planning and Structuring team at Moores is one of the largest in Australia and can assist you in preparing your Will to ensure that your assets do not end up somewhere unexpected.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
1 Administration and Probate Act 1958 (Vic) s 70J.
2 Ibid s 70K.
3 Ibid s 70M.
4 Ibid s 70L.
5 Ibid s 70ZG.
6 Ibid s 70ZH.
7 Ibid s 70ZI.
8 Ibid s 70ZJ.
9 Ibid s 70ZK.
10 Administration and Probate Act 1958 (Vic) s 70ZL.
11 Re an Application by State Trustees Ltd [2024] VSC 536.