What Happens When You Die Without a Will in Victoria? A Guide to Intestacy Laws

with Amanda Smith, Associate Lawyer in Wills & Estates 

If you die without a will in Victoria, your estate does not go unclaimed, and it does not ‘sit in limbo’. 

Instead, Victorian law decides who gets your estate, following a fixed formula rather than your personal wishes.

For families in Geelong and surrounding regions, this can produce outcomes nobody expected, particularly if the family is blended or a relationship was never formalised. 

Here’s what actually happens, and what to do if you find yourself dealing with intestacy.

What is intestacy?

Intestacy is the legal term for dying without a will. It also covers two situations people rarely expect: dying with a will that has been found invalid (where there is no prior valid will), or dying with a will that does not cover everything you own (partial intestacy). 

In any of these cases, the estate and assets left outside a valid will are distributed under Part IA of the Administration and Probate Act 1958, which sets a strict order for who inherits and who can apply to administer the estate. 

Unfortunately, there’s no flexibility for personal wishes or verbal promises made to loved ones.

What is the order of distribution when there’s no will?

Victorian law follows a strict hierarchy. Each level must be exhausted before the next is considered.

• Partner (married or de facto) and children, in a proportion set by legislation
• If no partner or children: parents
• If no parents: siblings
• If no siblings: grandparents
• If no grandparents: aunts, uncles, and cousins
• If no living relatives: the government

Where there is a partner and children from that same relationship, the partner generally receives the personal belongings and either the whole estate or a statutory legacy (in Victoria, as of July 2026, this is up to $591,390) amount, plus a share of the remainder, depending on the estate’s value. 

The statutory legacy is set each year by the Administration and Probate Act 1958 and changes annually, so it’s worth checking the current figure.

For the estate to pass to the government, there must be no surviving relative in any of these categories. This is rare, since most people have at least one relative who qualifies somewhere down the list.

How does intestacy affect blended families?

This is where intestacy causes the most difficulty. 

A common assumption is that children from a first relationship will simply inherit everything, or that a new partner will be provided for the same way a long-term spouse would be. Neither is guaranteed. 

The outcome depends on your family’s specific makeup and the estate’s value, which is exactly why blended families benefit from having a clear, up-to-date will.

Does a de facto partner have the same rights as a married partner?

Yes. Victorian law defines ‘partner’ to include both married and de facto relationships. If you meet the legal definition of a partner, you are treated the same way in the order of distribution, married or not.

What happens to jointly owned property?

Jointly owned property, such as a home held with a partner, does not form part of your estate. It passes directly to the surviving joint owner, with or without a will.

What happens to superannuation

Superannuation is not automatically covered by intestacy or a will unless you have a valid binding death benefit nomination with your fund. 

A binding death nomination is a written instruction to your super fund telling it exactly who should receive your super balance and any attached insurance payout if you die.

Many people nominate parents or siblings, assuming this covers them, without realising that binding nominations must be made in favour of a superannuation dependent and can lapse every three years. Without a valid nomination, the fund decides where that money goes.

Even a modest super balance can carry a much larger life insurance payout attached to it, which is why we recommend anyone over 18 to speak to a lawyer about their will and binding death nomination.

Can an intestate estate be contested?

The order of distribution is fixed by legislation, leaving little room to argue for a different outcome once someone has died intestate.

That said, an eligible person can still make a family provision claim if they believe the intestacy rules haven’t provided for them properly. This is a similar legal process to contesting a will, and it’s worth getting advice on if you think you may have been left out.

What should you do first if a loved one dies without a will?

Start by looking for a will, just in case one actually does exist.

There’s no central register in Victoria, so this often means checking paperwork at home and contacting law firms the person may have used. 

Once you’re confident no will exists, the next step is identifying who has the greatest legal entitlement to apply for Letters of Administration, the equivalent of a grant of probate for an intestate estate. 

This is not always the person who feels closest to the situation. It is determined by the same hierarchy that governs distribution.

Once Letters of Administration have been granted, the administrator does not decide who inherits, as they might with a will. Instead, they must collect the assets, pay any debts, and distribute according to the fixed order of distribution.

Frequently asked questions

What does it mean to die intestate in Victoria? 

Dying without a valid will, or without a will covering your entire estate. The Administration and Probate Act 1958 then determines how your assets are distributed.

Who inherits first if there is no will in Victoria? 

Your partner and children. Without a partner or children, the estate passes to parents, then siblings, then grandparents, then wider family.

Does a de facto partner inherit the same as a married partner? 

Yes. Victorian law treats de facto and married partners the same way, provided the relationship meets the legal definition of a partner.

Is superannuation automatically included in an intestate estate? 

No. Superannuation is only paid into your estate without a valid binding death benefit nomination, and nominations typically lapse every three years.

A will protects the people you love

A will puts you in control of your estate, instead of leaving it to a legislative formula. That’s why we recommend that everyone over 18 consult a lawyer to draft a will.

If you’re dealing with an estate where no will can be found, or want to put your own plans in place, get in touch with us. Our Wills & Estates team will help you get things in order.

This article is general information only and does not constitute legal advice. Every estate is different, and you should seek advice specific to your circumstances.