Major changes to how estates are distributed without a Will

wills and estates

What happens when you or a loved one dies without a Will in Victoria?

If you or a relative dies without a Will, or dies with a Will that has inadequate provisions, the deceased’s estate will be distributed in accordance with the Administration and Probate Act 1958 (the “Act”)

If this is the case, you essentially cannot control how you estate is distributed. This can result in headaches and disputes between potential beneficiaries. It is therefore advisable that you draft a will with the help of a legal professional- especially if you have substantial assets to protect or preferred beneficiaries to your estate.

Major changes to intestacy law

Intestacy law is an area of law that governs whats happens to a deceased’s estate when there is no Will, or there is inadequate guidance on estate distribution. On 1 November, 2017 major changes were introduced to the Act which significantly amended in intestacy laws.

The new changes sought to make the distribution of the deceased’s estate fairer amongst the deceased’s beneficiaries. 

Haitch Legal have prepared a summary of the current intestacy law in Victoria:

1. If the deceased has one (1) partner and no children, then 100% of the estate goes to the partner (no change);

2.If the deceased had children who were all born to the deceased’s partner, then 100% of the estate goes to the partner (new);

The above change means that children no longer receive entitlements under this change with the purpose being to provide security for the deceased’s partner who ay experience hardship after being widowed;

3. If the deceased had a partner, and children (at least one) to another partner, then the deceased’s partner will receive all the deceased’s chattels, the first $451,909 (Statutory Legacy) and 50% of the remaining balance thereafter, with the remaining 50% balance to be equally distributed among the deceased’s children (new);

This has been changed from $100,000 and 1/3rd of the balance to the deceased’s partner, with 2/3rd of the remaining balance to be distributed among the deceased’s children.

4. If the deceased did not have a partner but had children, then the estate is to be distributed equally among the all children (no change)

5. If the deceased did not have a partner or children but had a father and/or mother, then the deceased is to be equally distributed between them- or 100% to a sole parent if that were the case (no change); and,

6. If the deceased did not have a partner, children or parents but had a sibling, then the estate is to be equally distributed among the siblings (no change).

How is the estate distributed amongst multiple partners?

If the deceased left behind multiple partners, a different set of rules apply to them:

1.If the deceased had multiple partners but no children, then 100% of the estate is to be distributed in accordance with the following:

    • Where the partners come to an agreement between themselves, the partner’s share is to be distributed in the manner agreed;
    • Where the partners have not come to an agreement and one of them applies to the Supreme Court of Victoria, then the Court will decide on a fair and equitable distribution of the partners’ share between them;
    • Otherwise, the estate’s administrator is required to distribute the partners share of the estate equally between them.

2. If the deceased had multiple partners and had children who are not born to any partner, then the partners will receive the Statutory Legacy amount ($451,909) and 1/2 of the estate’s balance, with the remaining 1/2 to be distributed amongst the children.

Speak to us about your Will

There are a variety of complex scenarios that may come about due a death in the family. Our expert team of lawyers can draft your Will. This will safeguard your estate and your beneficiaries.

You can be in control of what happens to your estate after your passing by drafting your Will. If you have experienced a life event such the purchase of additional assets, a marriage in the family or a birth of a child there is a good chance that you may need to update your Will to reflect your wishes. 

Talk to our team of legal experts today or view more information on our expertise in the area of Wills and Estates.

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