Dying without a valid will is called dying intestate. Victoria has a statutory formula for what happens next, and it takes no account of what you would have wanted, who depended on you, or what you promised anyone.
Who inherits under the statutory formula
The Administration and Probate Act 1958 sets a fixed order of entitlement. In broad terms: a surviving partner takes the estate where there are no children from another relationship; where there are children from a previous relationship, the estate is split between the partner and those children according to a statutory calculation; with no partner, it passes to children, then to parents, siblings, grandparents, aunts and uncles and cousins in turn. If nobody in that list survives, the estate passes to the State.
Two consequences catch people out. Stepchildren you raised but never adopted are not on that list. And a long-term partner may need to prove the relationship qualifies before receiving anything.
Someone has to apply to the court
With a valid will, the executor applies for probate. Without one, a family member must apply to the Supreme Court of Victoria for letters of administration — a slower and more expensive process, at the estate’s cost, at a time when the family is least equipped to deal with it. Nothing can be sold or distributed until it is granted.
Children under 18
A will is where you nominate a guardian for children under 18. Without one, that decision may end up with a court, decided by people who never met you.
What a will does not cover
- Superannuation is generally not an estate asset. It is dealt with by the fund’s trustee unless you have a valid binding death benefit nomination. For many people it is their largest asset outside the family home, and it is the single most commonly overlooked part of estate planning.
- Jointly owned property held as joint tenants passes automatically to the surviving owner, regardless of the will.
- Life insurance paid to a nominated beneficiary sits outside the estate.
- Assets in a trust or company are not yours to leave — control of the structure is what matters.
Why kit wills fail
Predictably, and always at the worst time: witnessed incorrectly, silent on what happens if a beneficiary dies first, using words that mean something different in law than in conversation, or never updated after a marriage — which revokes an earlier will in most cases. A will that is invalid or ambiguous gets resolved by a court, and the estate pays for it.
The three documents to do together
A will deals with what happens after you die. An enduring power of attorney and an appointment of medical treatment decision maker deal with what happens if you are alive but cannot make decisions — which is statistically far more likely to be needed first. Prepare all three at once.