Information Centre · Wills & Estate Planning
Why Every Victorian Adult Needs a Will
A plain-English guide for Victorian adults — what a Will does, what happens without one, and the practical decisions every estate plan should answer.
Key points
- Every adult in Victoria should have a current, valid Will, regardless of age or wealth.
- Without a Will, an estate is distributed under Victoria's intestacy rules, not your wishes.
- A Will lets you choose your executor, guardians for children and how specific assets pass.
- DIY and informal documents often fail formal requirements or trigger disputes after death.
- Reviewing your Will after marriage, separation, children or significant asset changes is essential.
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A Will is an important legal document for Victorian adults. It lets you direct who inherits your estate assets, who administers your estate, and record your wishes about who cares for any minor children. A Will controls estate assets only — it does not itself dispose of company assets or trust assets, and superannuation and insurance are dealt with under their governing documents and applicable law. Without a Will, the intestacy rules apply.
This guide explains, in plain language, why a properly drafted Will is worth considering, what happens under Victorian law if you do not have one, and the practical decisions an estate plan may need to address.
Why a Will Matters
A Will lets you record decisions about the following, in respect of assets that form part of your estate:
- Who inherits — a partner, children, a charity, a friend, or a combination tailored to your circumstances.
- How they inherit — outright, on trust, by staged distributions, or with protective conditions for vulnerable beneficiaries.
- Who is in charge — the executor or executors responsible for administering your estate.
- Your wishes about children — a proposed testamentary guardian for any minor children. This is a wish, not a binding parenting order.
- Your interests in a business — your shares, units, loan accounts and any transmissible offices or powers, subject to any constitution, partnership deed, trust deed or agreement that restricts or governs transfer.
A Will controls estate assets. Superannuation is dealt with by the fund trustee under the fund deed and any effective nomination; life insurance depends on the policy and any effective nomination; jointly held property may pass by survivorship as to legal title, subject to beneficial-ownership questions; and trust and company assets are governed by the trust deed or the company's constitution and agreements.
What Happens if You Die Without a Will?
Dying without a valid Will is called dying intestate. In Victoria, the distribution of an intestate estate is governed by Part IA of the Administration and Probate Act 1958 (Vic), including sections 70J to 70L. The Act applies a statutory formula that does not adjust for your individual wishes or circumstances.
Where there is no executor to prove a Will, an administrator must apply to the Supreme Court of Victoria for Letters of Administration before certain dealings with estate assets can occur. Timing, cost and conflict on any particular estate depend on its circumstances.
Who Receives Your Assets Under Victorian Intestacy Rules?
Victorian intestacy law applies a fixed hierarchy. The headline outcomes include:
- Partner, no issue — the partner takes the whole residuary estate.
- Partner and issue, all of that relationship — the partner takes the whole residuary estate.
- Partner and issue not all of that relationship — if the residuary estate does not exceed the statutory legacy, the partner takes the whole residuary estate (including personal chattels). If it exceeds the statutory legacy, the partner takes the personal chattels, the statutory legacy and interest, and half of the balance; the other half is shared among the deceased's issue by statutory representation.
- Multiple partners (for example a spouse and a domestic partner) — the Act provides for distribution between them, by agreement, court order or default formula.
- No partner, issue only — the residuary estate is shared among the issue by statutory representation.
- No partner, no issue — the estate passes through parents, siblings and their issue, grandparents, aunts and uncles and their issue, and ultimately to the State of Victoria as bona vacantia if no eligible relative survives.
The statutory legacy figure and interest rate change over time and the rules are more detailed than this summary suggests, particularly for blended families, de facto partners and separated (but not yet divorced) spouses. Stepchildren do not inherit merely as stepchildren under the hierarchy. If any of these circumstances apply, the default outcome may not be the outcome you would choose.
Common Problems Caused by Not Having a Will
In our experience administering Victorian estates, the absence of a Will can produce the following difficulties, depending on the circumstances:
- Delay. Letters of Administration proceedings may take time, particularly where competing claims to act arise.
- Cost. Legal and accounting costs on an intestate estate can be higher than on a well-planned estate.
- Family conflict. Statutory shares can divide families along unintended lines, particularly in blended households.
- Unintended outcomes. A separated but not yet divorced spouse can remain relevant under intestacy; stepchildren do not inherit merely as stepchildren; and the statutory hierarchy can produce outcomes the deceased would not have chosen.
- Loss of tax and asset-protection planning options. Testamentary trusts, coordinated superannuation direction and certain planning options are not available on intestacy.
- Guardianship uncertainty. Without your recorded wishes, decisions about the care of minor children may need to be resolved under the Family Law Act 1975 (Cth), which applies the child's best interests.
Choosing Executors
Your executor is the person — or people — legally responsible for administering your estate: proving the Will where required, identifying and securing assets, paying liabilities and tax, and distributing what remains in accordance with your Will. The choice deserves consideration.
A suitable executor is trustworthy, organised and, ideally, willing to seek professional advice. Many people appoint a partner or adult child, with a substitute. Where an estate is complex — including a business, a trust, blended family interests, or beneficiaries living overseas — appointing an independent professional executor (alone or alongside a family member) may be worth considering. Appointment, remuneration and independence all need thought.
Guardianship of Children
For parents of minor children, a Will can record your wishes and nominate a proposed testamentary guardian for your children if both parents die. A Will does not make a binding parenting order and does not guarantee that the nominated person will care for the child. Any dispute or order about the care of a child is governed by the Family Law Act 1975 (Cth) and is determined by reference to the child's best interests.
Discuss the proposed appointment with the person concerned before naming them, consider their age, location and circumstances, and revisit the choice as children grow. Coordinating your wishes with appropriate financial arrangements — sometimes through a testamentary trust — can help ensure resources are available for the child.
Protecting Vulnerable Beneficiaries
Some beneficiaries may not be best served by receiving a large lump sum outright. A Will can, in appropriate cases, establish testamentary trusts to consider:
- Beneficiaries with a disability or who receive Centrelink support. A Special Disability Trust must satisfy statutory requirements; benefits and entitlements are not preserved automatically.
- Minor children, with staged capital distributions at chosen ages.
- Beneficiaries facing bankruptcy, addiction, gambling issues or relationship-breakdown risk.
- Beneficiaries who are young, inexperienced with money, or vulnerable to undue influence.
Whether a testamentary trust delivers particular income-splitting, tax or asset-protection outcomes depends on drafting, control, tax, bankruptcy, family law, social-security and the individual beneficiaries' circumstances. Outcomes are not guaranteed.
Business Owners and Wills
If you own or co-own a business — whether through shares, a partnership, a unit trust, or a discretionary trust — your Will controls only your estate interests. Company assets belong to the company; trust assets belong to the trust. Your Will may deal with your shares, units, loan accounts and any transmissible offices or powers, subject to any constitution, partnership deed, trust deed, shareholders' agreement or buy-sell arrangement that governs or restricts transfer. These documents have different legal operation and need to be coordinated — they do not simply "conflict".
A coordinated plan may address control of the business entity, transfer of shares or units, treatment of loan accounts, buy-sell arrangements, key-person insurance, and the succession of the trustee and appointor of any associated trust.
Why DIY Wills Can Create Problems
Off-the-shelf Will kits and online templates can appear inexpensive, but they carry real risks in Victorian estates. Possible issues include:
- Execution and formalities. Incorrect witnessing, missing signatures, or alterations that do not comply with the Wills Act 1997 (Vic) can create validity issues.
- Interpretation. Vague descriptions of assets or beneficiaries can require court interpretation.
- Asset scope. A Will controls estate assets — it does not itself dispose of trust or company assets, and superannuation is dealt with under separate frameworks. Joint legal title may pass by survivorship, subject to beneficial-ownership and equitable interests that can require separate analysis. DIY drafters often try to include assets the Will cannot control.
- No contingency. No substitute beneficiary or executor if a first-named person predeceases you.
- No planning for particular beneficiaries. Outright gifts where a testamentary trust or protective structure may have served the family better in the circumstances.
Defects in a homemade Will may require court applications, professional work or dispute resolution after death.
When Should You Update Your Will?
A Will is a living document. Consider reviewing your Will whenever your circumstances change materially, and periodically according to your circumstances. Common triggers include:
- Marriage, separation, divorce or a new domestic partnership.
- The birth or adoption of children or grandchildren.
- The death or illness of an executor, guardian or beneficiary.
- A significant change in assets — sale or purchase of a home, inheritance, business sale, retirement.
- Changes to a beneficiary's circumstances — disability, bankruptcy, relationship breakdown.
- Moving between Australian states or overseas.
- Changes to superannuation, trust or company structures.
- Changes in the law — Victorian succession and family provision rules continue to evolve.
Marriage revokes a Will under section 13 of the Wills Act 1997 (Vic), subject to the preserved dispositions, appointments and powers in section 13(2), to Wills made in contemplation of the particular marriage and to Wills expressly made in contemplation of marriage generally. Divorce revokes specified dispositions and appointments concerning the former spouse under section 14, subject to statutory exceptions and any contrary intention; the Will otherwise operates as if the former spouse predeceased. Separation alone does not itself invoke section 14. These are among the points at which a review with your lawyer is worth considering.
Key Takeaways
- A Will lets you decide how your estate assets are dealt with, who administers your estate, and record your wishes about the care of any minor children.
- Dying intestate applies a statutory formula under Part IA of the Administration and Probate Act 1958 (Vic) that does not adjust for your particular circumstances.
- A Will can nominate an executor, record wishes about guardianship, and (in appropriate cases) establish testamentary trusts. Business succession requires coordination with the relevant constitution, deed or agreement.
- Testamentary trusts may offer, in appropriate cases, flexibility for income distribution, potential tax advantages under the excepted trust income rules and a degree of separation from a beneficiary's personal circumstances. Outcomes depend on drafting and the beneficiaries' circumstances; specialist advice is required.
- Consider reviewing your Will after significant life events and periodically according to your circumstances.
Frequently Asked Questions
Do I really need a Will if I am young and do not own much?
A Will lets you direct who benefits from your estate assets and — if you have children — record your wishes about the person you would like to care for them. Even for younger adults, superannuation and life insurance can be substantial on early death, though those are dealt with by the fund trustee and the insurer under the fund deed, any effective nomination and applicable law rather than by the Will itself.
Does my Will deal with my superannuation?
Not automatically. Superannuation death benefits are dealt with by the trustee of your fund under the fund deed, any effective binding or non-binding nomination, any reversionary pension, and applicable law. Whether a benefit reaches your estate depends on the fund deed, pension terms, any effective nomination, trustee powers and applicable law — your Will and your nomination need to be considered together.
What is probate?
Probate is the Supreme Court of Victoria's confirmation that a Will is valid and that the named executor is authorised to administer the estate. Under a valid Will the executor's title arises from death; probate proves that title. Banks, share registries and Land Use Victoria may require a grant or an applicable small-estate process before acting.
Can someone challenge my Will?
Part IV of the Administration and Probate Act 1958 (Vic) sets out closed categories of eligible persons and category-specific conditions for a family provision (or 'TFM') claim. Eligibility alone does not establish entitlement. Careful drafting and considered structuring can help address foreseeable risks, but no drafting removes the statutory right of an eligible person to apply.
Where should I store my Will?
Originals should be stored securely — commonly in a solicitor's safe custody — with copies retained by you and your executor. The location of the original should be known to those who will need to find it.
How long does it take to prepare a Will?
Timing depends on the complexity of your circumstances, the instructions you provide, the parties who need to be consulted, and your own availability to review drafts. Straightforward estates can move faster than those involving testamentary trusts, business interests, blended families or overseas assets; no specific timeframe can be promised in advance.
Which assets don't automatically pass under my Will?
Property held as joint tenants generally passes to the surviving joint owner by survivorship as to legal title, though beneficial ownership can be affected by trust, contribution or contractual issues. Superannuation is dealt with by the fund trustee, subject to any effective nomination and the fund deed. Life insurance depends on the policy owner and any effective nomination. Trust assets belong to the trust; company assets belong to the company. Your Will only controls assets that form part of your estate — coordinating your Will with your nominations, joint ownership and any trust or company structure is central to a working plan.
How do marriage, divorce or separation affect my Will?
In Victoria, section 13 of the Wills Act 1997 (Vic) provides that marriage revokes an earlier Will, subject to the exceptions in section 13(2) (which preserve certain dispositions, appointments and powers) and to Wills made in contemplation of the particular marriage or of marriage generally. Section 14 provides that divorce revokes specified dispositions to, and appointments of, a former spouse (and, in some cases, certain grants of power), subject to statutory exceptions and any contrary intention, and the Will otherwise operates as if the former spouse had predeceased. Separation alone (without divorce) does not itself invoke section 14. Review your Will if your relationship status changes.
Does a testamentary trust automatically deliver tax or asset-protection benefits?
No. Testamentary trusts can, in appropriate cases, provide flexibility for income distribution, potential tax advantages for minor children under the excepted trust income rules, and a degree of separation from a beneficiary's personal circumstances. Whether those benefits are available in a given case depends on the trust's terms and control, the beneficiaries' circumstances, and the wider tax, bankruptcy, family law and social-security position. Structural benefits are never guaranteed and specialist advice is required.
Related estate planning guides
A Will is one component of an estate plan and several adjoining documents may sit alongside it, including a testamentary trust considered for asset protection and tax planning, while couples may consider mutual wills versus mirror wills and, for second marriages, blended family estate planning. Superannuation is dealt with by the fund trustee under the fund deed, any effective nomination and applicable law — see superannuation and your Will. Where a person has lost capacity to make a Will, a statutory Will may be available, and a pet care provision may be added where companion animals are part of the household. Informal or DIY documents carry risks set out in informal and electronic Wills in Victoria.
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This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.