Why Every Victorian Adult Needs a Will

Why a Will Matters

A Will is the cornerstone of an orderly estate. Without one, the law decides what happens to your assets, not you. With one, you retain control over the matters that most affect the people you love:

• Who inherits — your spouse or partner, your 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.
• Who cares for your children — the guardian or guardians you nominate for any minor children.
• What happens to your business — including shares, partnership interests, trusts and succession.

A Will is not only for the wealthy or the elderly. Superannuation, life insurance, a car, the family home, a modest savings account, digital assets, sentimental items — almost every adult holds something that will need to pass to someone when they die.

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 the Administration and Probate Act 1958 (Vic), as amended by the Justice Legislation Amendment (Succession Laws) Act 2017. The Act sets a rigid statutory formula: it does not account for your wishes, your relationships, your blended family, or the practical realities of your circumstances.

Instead of an executor you have chosen, the Supreme Court of Victoria must appoint an administrator — often a family member who must apply for Letters of Administration before any assets can be dealt with. That process is generally slower, more expensive and more contentious than administering an estate under a properly drafted Will.

Who Receives Your Assets Under Victorian Intestacy Rules?

Victorian intestacy law applies a fixed hierarchy. The headline outcomes include:

• Partner, no children — your partner generally takes the whole estate.
• Partner and children, all of that relationship — your partner generally takes the whole estate.
• Partner and children from another relationship — the partner takes the personal chattels, a statutory legacy (indexed and substantial), and half of the balance; the remaining half is divided among all children.
• 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, children only — the estate is divided equally among children.
• No partner, no children — the estate passes through parents, siblings, nieces and nephews, grandparents, aunts and uncles, and ultimately to the State of Victoria as bona vacantia if no eligible relative survives.

The figures and thresholds change over time, and the rules are more nuanced than this summary suggests — particularly for blended families, de facto partners and separated (but not yet divorced) spouses. If any of those circumstances apply, the default outcome is unlikely to be the one you would choose.

Common Problems Caused by Not Having a Will

In our experience administering Victorian estates, the absence of a Will commonly produces the following difficulties:

• Delay. Letters of Administration take longer to obtain than a grant of probate, especially where multiple family members have competing claims to act.
• Cost. Legal and accounting fees in an intestate estate are almost always higher than in a well-planned one.
• Family conflict. Statutory shares can divide families along unintended lines, particularly in blended households.
• Wrong outcomes. Estranged relatives, ex-partners and unintended beneficiaries can inherit, while loved ones, step-children and chosen charities receive nothing.
• Loss of tax and asset-protection planning. Testamentary trusts, superannuation direction and capital gains roll-overs are unavailable to an intestate estate.
• Children left exposed. Without a nominated guardian, the Family Court may need to determine who raises your children.

Choosing Executors

Your executor is the person — or people — legally responsible for administering your estate: applying for probate, identifying and securing assets, paying liabilities and tax, and distributing what remains in accordance with your Will. The choice deserves real thought.

A good executor is trustworthy, organised, financially literate and, ideally, willing to seek professional advice. Many clients appoint a spouse or adult child, with a backup. 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) can prevent conflict and protect family relationships.

Guardianship of Children

For parents of minor children, the appointment of a testamentary guardian is often the single most important reason to make a Will. A guardianship clause records, in legally recognised form, who you wish to care for your children if both parents die. It is not automatically binding on a court, but it is given very significant weight.

Discuss the appointment with the proposed guardian before naming them, consider their age, location and circumstances, and revisit the choice as children grow. Coordinating guardianship with appropriate financial arrangements — often through a testamentary trust — ensures the guardian has the resources to raise your children without being personally burdened.

Protecting Vulnerable Beneficiaries

Some beneficiaries should not receive a large lump sum outright. A Will can establish bespoke testamentary trusts to protect:

• Beneficiaries with a disability or who receive Centrelink support, through a Special Disability Trust or protective trust that preserves entitlements.
• Minor children, with staged capital distributions at chosen ages.
• Beneficiaries facing bankruptcy, addiction, gambling issues or relationship breakdown risk.
• Beneficiaries who are simply young, inexperienced with money, or vulnerable to undue influence.

Testamentary trusts also offer significant income-splitting and asset-protection benefits that an outright gift cannot replicate. They are unavailable on intestacy.

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 is only one part of an integrated succession plan. We routinely see business owners whose Wills conflict with their shareholder agreements, partnership deeds or trust deeds. The conflict is usually discovered only after death, when it is too late to resolve cleanly.

A coordinated plan addresses 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. For owner-operated businesses, this work protects both the value of the enterprise and the income of the family who depend on it.

Why DIY Wills Can Create Problems

Off-the-shelf Will kits and online templates can seem appealing on cost, but they regularly fail in execution. The Supreme Court of Victoria deals frequently with disputes arising from homemade Wills — typically caused by:

• Defective execution — incorrect witnessing, missing signatures, or pages signed in the wrong order.
• Ambiguous wording — vague descriptions of assets or beneficiaries that require court interpretation.
• Assets that cannot be gifted — superannuation and jointly held property do not pass under a Will, but DIY drafters often try to include them.
• No contingency — no substitute beneficiary or executor if the first-named person predeceases you.
• No tax or asset-protection planning — outright gifts where a testamentary trust would have served the family far better.

The cost of correcting a homemade Will after death — through court applications, professional fees and family conflict — is almost always many multiples of the cost of having had it prepared properly in the first place.

When Should You Update Your Will?

A Will is a living document. It should be reviewed whenever your circumstances change materially, and at a minimum every three to five years. 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.

Importantly, marriage generally revokes an existing Will in Victoria unless the Will is expressly made in contemplation of that marriage. Divorce can affect specific gifts and the appointment of a former spouse as executor. These are exactly the points at which a brief review with your lawyer avoids a much larger problem later.

Key Takeaways

• Every Victorian adult — not only the wealthy or the elderly — should have a current, professionally drafted Will.
• Dying intestate forces a rigid statutory formula onto your family; it is slower, more costly and rarely produces the outcomes you would have chosen.
• A well-prepared Will lets you choose your executor, appoint guardians for children, protect vulnerable beneficiaries and integrate business succession.
• Testamentary trusts deliver tax, control and asset-protection advantages that intestacy and DIY Wills cannot.
• Review your Will every three to five years and after any significant life event.

Frequently Asked Questions