Intestacy and Family Provision under Victorian Law
Most people assume their assets will automatically go to their partner or children. But under Victorian law, that’s not always the case, and the outcome can be very different from what you would have wanted.
Dying without a will (called intestacy) can lead to unexpected consequences: a partner may have to share the family home with stepchildren, assets may be frozen until the court appoints someone to manage them, and family members may even need to go to court to claim financial support.
Instead of you deciding who receives what, the law makes that decision for you.
In Victoria, the Administration and Probate Act 1958 (Vic) (the Act) sets out how estates are distributed where there is no will, what entitlements a surviving partner may receive, and how dissatisfied family members can challenge the outcome through family provision claims.
Understanding Intestacy in Victoria
A person who dies without a will is said to have died ‘intestate.’ In such cases, their estate is managed by a court-appointed administrator rather than an executor, and distributed according to the intestacy provisions in the Act. The administrator applies to the Supreme Court of Victoria for a Grant of Letters of Administration, which authorises them to manage and distribute the deceased’s property. These intestacy provisions apply whether the person dies without any will at all, or where a will does not dispose of all their property.
The Act gives first priority to the deceased’s spouse or domestic partner. If no children survive, the partner will usually inherit the entire estate. Where both a partner and children survive, the law provides a more detailed scheme. The partner is entitled to a statutory legacy, personal belongings, and a share of the remainder, while the balance is divided among the children.
If there is no surviving partner or any children, the estate passes in a set order of priority to other relatives, such as parents, siblings, grandparents, and more distant kin. Only if no relatives can be found will the estate pass to the Crown, i.e., the State of Victoria. These provisions reflect a clear policy to keep property within the family wherever possible.
Part IA of the Act governs intestacy, covering sections 70A to 70ZL.
The Statutory Legacy – Protecting the Surviving Partner
An important protection for a surviving spouse or domestic partner in particular is the statutory legacy, set out in s70M of the Act. The statutory legacy is a fixed sum of money that the deceased’s partner (spouse or de facto) is entitled to receive if the deceased died intestate and left children who are not the children or issue of that partner. It guarantees the partner receives a minimum share before the rest of the estate is divided, and exists both to prevent financial hardship for the surviving partner and to avoid unfair outcomes where children from previous relationships might otherwise take priority over that partner.
At its commencement, this entitlement was set at $451,909. However, recognising that the value of money changes over time, the Act requires the amount to be adjusted annually in line with the Consumer Price Index (CPI) for Melbourne. For the 2025/2026 financial year, this amount is $573,640.
The formula prescribed by the Act ensures that the statutory legacy maintains its real value against inflation. Each financial year, the updated amount must be published in the Government Gazette.
See here for further information on the statutory legacy and how it is to be calculated: https://www.nationalprobate.com.au/vic/statutory-legacy
Can the Distribution Be Challenged? Family Provision Claims
While the intestacy rules provide certainty, they cannot cater to every personal circumstance. For this reason, Part IV of the Act allows eligible people to bring a family provision claim if the estate does not make adequate provision for their proper maintenance and support.
Eligible persons include adult children, who must show need or other circumstances justifying further provision. The court must be satisfied that the deceased owed the applicant a moral duty to provide for them and that the distribution whether by will or intestacy fails to meet that duty.
In deciding whether to order further provision, the court considers factors listed in s 91 and s 91A, including:
- the relationship between the applicant and the deceased;
- the applicant’s financial resources and needs;
- the competing needs of other beneficiaries;
- the size and nature of the estate; and
- any disabilities or special circumstances of those involved.
This process ensures that fairness can be achieved where rigid application of the intestacy rules would leave someone inadequately provided for.
How Disputes Are Resolved
Family provision claims are subject to compulsory mediation, providing an opportunity to settle disputes without a hearing. Mediation is an important step, as it allows the parties to negotiate confidentially and often leads to resolution in a cost effective and timely manner.
If mediation is unsuccessful, the matter proceeds to a court hearing. At this stage, the judge considers the financial circumstances of the applicant, the value of the estate, and the competing claims of beneficiaries. The executor or administrator must also provide details of the estate and the costs of administration. Orders can then be made to redistribute the estate in a way the court considers just. This process underscores the court’s role in balancing certainty with fairness.
Balancing Certainty and Fairness
The intestacy rules in the Act are designed to give clear answers about how an estate will be divided in the absence of a will. At the same time, the Act recognises that fairness sometimes requires flexibility. The statutory legacy protects surviving partners by ensuring they receive a fair, inflation-adjusted entitlement.
Why Planning Still Matters
Victoria’s legal system is designed to protect families when someone dies without a will, but it can only go so far. While intestacy laws provide structure and fairness, they may not always reflect your personal wishes or your family’s unique circumstances. A statutory legacy may protect your partner, and family provision laws may step in to correct unfair outcomes, but these are safety nets, not substitutes for clear instructions.
The most powerful way to protect your loved ones is through proactive planning.
A valid will ensures your voice is heard, your intentions are honoured, and your family avoids unnecessary stress, delay or conflict at an already difficult time.
In the end, the law can distribute your estate, but only you can decide your legacy.
For more information about planning your Will, please get in touch with Warlows Legal today using the contact information below.
