What is intestacy?
Intestacy occurs when a person passes away without leaving a valid will, or if their will does not deal with all of their assets. When this happens, the estate cannot be distributed according to the deceased’s personal wishes. Instead, the estate is divided according to strict intestacy laws set out in the Administration and Probate Act 1958 (Vic).
Unfortunately, this can lead to outcomes that are very different from what the deceased may have intended. For this reason, intestacy is best avoided through careful estate planning and preparation of a valid will.
What happens if no will has been left?
If a person dies intestate in Victoria, the law provides a fixed order of entitlement that determines who inherits. Generally, this includes:
- The spouse or domestic partner of the deceased
- Children of the deceased
- Parents, siblings, and more distant relatives if there is no spouse or children
If no eligible relatives can be found, the estate passes to the State of Victoria.
While intestacy laws provide a level of structure and certainty, they have serious drawbacks:
- No choice of executor or administrator – the Court decides who will manage the estate.
- No tax or asset protection planning – unlike a properly drafted will, intestacy laws cannot minimise tax or protect assets.
- No guardianship provisions for children – the law does not allow parents to appoint guardians for their children without a will.
- Higher risk of disputes – disagreements often arise between relatives about who is entitled to what, or even about who is legally recognised as the next of kin.
