Estate Group update: Dying without a will

Oct 31, 2017

From 1 November 2017, amendments to the Administration and Probate Act 1958 (Vic) come into effect.

A number of the changes significantly impact what will be received by the surviving partner(s) and children where the deceased person died without leaving a valid will (intestate). Where a deceased person is survived by:

  • one partner and the children with that partner – the surviving partner inherits the whole estate.
  • one partner and the children who are not children of the partner – the surviving partner inherits the first $451,909 plus one half of the estate, while the children share the remaining half.
  • more than one partner and children who are not the children of any of the surviving partners – the surviving partners share $451,909 plus one half of the estate, while the children share the remaining half.

The table below highlights the changes that will apply to persons who die intestate in Victoria from 1 November 2017.

Distribution where survived by: Died before 1 November 2017 Died after 1 November 2017
Partner (no children) Whole estate to partner. Whole estate to partner.
Children (no partner) Whole estate to children equally. Whole estate to children equally.
Partner and children with the same partner If the value of the estate is:

  • $100,000 or less – partner receives whole estate; or

  • more than $100,000 – partner receives personal chattels + first $100,000 + 1/3 of remaining estate and children receive 2/3 of remaining estate equally.
Whole estate to partner.
Partner and children from another relationship
As above. If the value of the estate is:

  • $451,909 or less – partner receives whole estate; or

  • more than $451,909 – partner receives personal chattels + first $451,909 + 1/2 of the remaining estate and children receive 1/2 of the remaining estate equally.
More than one partner and no children

or

More than one partner and children of the partners
Length of relationship will determine division between partners. Seek legal advice. Partners share in estate by agreement by the Court.

Failing agreement / order estate distributed between the partners equally.
More than one partner and children who are not of the partners As above. If the value of the estate is:

  • $451,909 or less – partners share in estate by agreement or determined by the Court.

    Failing agreement / order, estate distributed between the partners equally; or

  • more than $451,909 – partners to share personal chattels + first $451,909 + 1/2 of the remaining estate by agreement or  determined by the Court.

    Failing agreement / order, estate distributed between the partners equally.

    Children receive 1/2 of the remaining estate equally.
Parents only Whole estate to parents equally. Whole estate to parents equally.
Brothers and sisters
(or children of any brothers and sisters who predeceased) only
Whole estate to siblings equally. Whole estate to siblings equally.
Grandparents Whole estate to parents equally. Whole estate to parents equally.
Aunts and uncles
(or children of any aunts and uncles who predeceased) only
Whole estate to aunts and uncles equally. Whole estate to aunts and uncles equally equally.
Remote next of kin only Whole estate equally. Whole estate equally.
None of the above The Crown / Victorian Government. The Crown / Victorian Government.

It is important to note that:

  • partner includes a spouse by marriage or a domestic partner;
  • children excludes stepchildren;
  • the ‘statutory legacy’ (currently $451,909) may increase each year;
  • if assets are owned outside Victoria, the intestacy provisions may be different; and
  • this is a guide only and legal advice should be obtained as your personal circumstances may affect the outcome.

In conclusion

While the new legislation goes a long way to improving the position of the surviving partner(s), there is no substitute for a well-planned and validly executed will.

For more information and advice on estate planning, asset protection and family provision claims, please contact our Estate Group on (03) 8600 8885.

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