Victoria Legal Aid

If someone dies without a Will

If you die without a Will the law decides who gets your assets.

If you die without a valid Will, the law decides who gets your assets. This is called ‘dying intestate'.

These rules apply to everyone and do not take into account an individual’s wishes or situation.

Who gets the estate

If you die without a Will or your Will is not valid, then an application for a Grant of Letters of Administration may need to be made to the Supreme Court. Usually, it is the deceased’s next of kin who has to apply for this grant. For example, the spouse, domestic partner or a child of the deceased.

If the person died and left behind a partner, then all of the estate goes to them. If there were also children from another relationship then some of the estate may also go to those children, but this depends on how much money was left in the estate. This won’t happen unless there was about $500,000 in the estate after all debts and funeral expenses have been paid. Different rules apply if the person left behind more than one partner.

If there were children but no partner, the estate is distributed to the children equally.

If the person had no partner or children, then all the estate goes to relatives in this order:

  1. Parents
  2. Siblings
  3. Grandparents
  4. Aunts and uncles
  5. Cousins.

The estate does not pass to the government unless there are no living relatives.

If you think you might benefit from a Will, it is always best to get independent legal advice from a private lawyer.

Domestic or de facto relationships

A domestic or de facto relationship is when two people are not married but live together or have lived together as a couple on a genuine domestic basis. The same laws apply to same-sex couples as to heterosexual (different-sex) couples.

You need to have lived in a domestic or de facto relationship for two years, or have a child together, or have formally registered your relationship before your partner can benefit from your estate if you die without a Will.

The safest way to make sure your partner gets what you want them to inherit from your estate is to make a valid Will.

Other support

Find out how you can get other support for Wills, estates and powers of attorney.

Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.

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Reviewed 21 June 2023

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