Die in Victoria without a valid will and your estate is not distributed by fairness, family discussion or what you "would have wanted": it follows a fixed statutory formula that has never met your family, and that formula decides who administers your estate and who inherits it. Nearly half of Australian adults are in exactly that position. Here is what happens, who inherits, and why the outcomes surprise almost everyone.
Intestacy: the will Parliament wrote for you
Dying without a valid will is called dying intestate. Victoria's Administration and Probate Act 1958 then dictates who administers your estate and who inherits it, in strict order. The formula was modernised in 2017 to reflect contemporary families, and it is more generous to partners than the old law, but it remains a formula: rigid, impersonal, and utterly indifferent to promises, estrangements, need or the mortgage your stepdaughter shares with you.
Who inherits if you leave a partner and no other children?
Where you are survived by a spouse or domestic partner, and any children are also the children of that partner, the position is simple: your partner takes the whole estate. Children of the relationship receive nothing directly: the law assumes the surviving parent will provide for them. For many young families this approximates what a will would have said, which lulls people into thinking intestacy is harmless. The illusion ends at the next scenario.
Blended families: where the formula bites
If you leave a partner and a child from another relationship, the estate is split: the partner receives your personal chattels, a statutory legacy (a substantial fixed sum, indexed over time) and half of whatever remains; the other half of the balance is shared equally between all of your children, including any children you had with your partner. In modest estates, the legacy can consume everything, leaving your children nothing. In larger estates, the family home may need to be sold to fund the split, though the partner has rights to elect to take the home as part of their entitlement. Either way: conflict is built into the arithmetic, between the two groups of people you loved most.
Multiple partners, no partner, no family
The Act even contemplates a deceased survived by more than one partner, such as a spouse not yet divorced and a new domestic partner, with distribution schemes and, failing agreement, court determination. No partner? The estate passes in fixed order: children (equally, with a deceased child's share passing to their children), then parents, siblings, grandparents, aunts and uncles, and cousins. No relatives inside the categories at all, and the estate passes to the Crown, the State of Victoria, with a discretion to provide for dependants. People with no close family who intend to benefit friends, carers or charities achieve none of it without a will.
Who runs the estate if there is no will?
With no executor appointed, someone, usually the partner or a child, must apply to the Supreme Court for letters of administration: a slower application than probate, with extra proof about family composition. Where family members compete for the role, or nobody volunteers, delay and cost multiply; contested families sometimes end with an independent administrator. Meanwhile accounts stay frozen and bills arrive. Administration of an intestate estate then follows the same path described in our probate guide, from inventory to debts to distribution, but with the beneficiaries chosen by statute, and family provision claims under Part IV fully available to reshape the result. Intestacy does not avoid disputes; it invites them.
What does intestacy never cover?
- Guardianship: a will can nominate a guardian for children under 18; intestacy nominates no one, leaving the question to family agreement or, failing that, to the family law courts.
- Superannuation and life insurance often pass outside the estate under their own rules, see super death benefits, and where a benefit is paid to the estate instead it joins the pool and follows the same formula. With no will and no nomination, both layers of default rules apply at once.
- Structure: no testamentary trusts, no tax-efficient design for minors, no protection for a vulnerable beneficiary: the formula pays cash outright, ready or not.
- Sentiment: the ring, the letters, the business you built with one child: all just assets in the pool.
Common myths, quickly retired
"Everything automatically goes to my spouse anyway." Only in the simplest family shape. "We're not married, so she gets nothing / everything." Neither is automatic. An unmarried partner inherits like a spouse only if the relationship was formally registered, or the two of you were living together as a couple when you died and had done so continuously for at least two years, or were living together as a couple and have a child together who was under 18 at the time of death. A partner who meets none of those tests inherits nothing under the formula. Even then, proving the partnership, under grief, is its own ordeal. "I'm young." Intestacy law does not check birthdays. "The government takes it all." Almost never, but the government does decide who gets it, which should bother you almost as much.
If you are already administering an intestacy
Perhaps you are reading this after a death, not before one. Take heart: intestate estates are administered every week, and the path is well worn. Establish who is entitled to apply for letters of administration, gather proof of the family tree, where marriage and birth certificates do real work, and do not distribute anything until entitlements are certain and the family provision window has passed. Partners should take advice before agreeing to anything about the home, because the statutory right to elect to take it is valuable and time-bound. One early conversation prevents most of the expensive mistakes.
The one-hour fix
Every consequence above is avoided by a valid will: an hour of your time, a fixed fee quoted before we start, and signing supervised so the formal requirements are properly met. Read how to make a valid will in Victoria, then book the hour. Our wills and estates page has the details.
The bottom line
Intestacy is not a neutral default: it is a distribution scheme with opinions, and they may not be yours. It cannot protect a vulnerable child, provide for a friend, steer a business, or keep peace in a blended family. Everything it does badly, a one-hour will does well. Few hours in adult life return more per minute.
Common questions
Who inherits if I die without a will in Victoria? A fixed statutory formula decides, in strict order, rather than your family. If you are survived by a spouse or domestic partner and any children are also the children of that partner, your partner takes the whole estate. If there is no partner, the estate passes in fixed order to children, then parents, siblings, grandparents, aunts and uncles, and cousins.
What happens to my children from an earlier relationship if I have no will? The estate is split. Your partner receives your personal chattels, a statutory legacy (a substantial fixed sum, indexed over time) and half of whatever remains, and the other half of the balance is shared equally between all of your children, including any children you had with your partner. In modest estates, the legacy can consume everything, leaving your children nothing.
Does an unmarried partner inherit if there is no will? Only if the relationship meets the legal test. An unmarried partner inherits like a spouse under Victoria's intestacy rules only if the relationship was formally registered, or the couple were living together as a couple at the time of death and had done so continuously for at least two years, or were living together as a couple and have a child together who was under 18 at the time of death. A partner who meets none of those tests receives nothing under the intestacy formula. The practical difficulty is then proving the relationship, under grief, which is its own ordeal.
Who applies to administer the estate when there is no will? With no executor appointed, someone, usually the partner or a child, must apply to the Supreme Court for letters of administration. That is a slower application than probate, with extra proof about family composition, and where family members compete for the role, or nobody volunteers, delay and cost multiply.
The fix for intestacy costs an hour of your time: a properly drafted will, at a fixed fee quoted first. Call (03) 9125 8355 or send an enquiry.
This guide reflects the law applying in Victoria as at September 2026. It is general information only, not legal advice, and does not take your circumstances into account.
