Intestate Estate Victoria: Who Inherits When There's No Will

About half of Australian adults don't have a will. When someone in Victoria dies without one, the Administration and Probate Act 1958 dictates exactly who gets what — and the results regularly surprise families.

The formula is rigid. It doesn't consider what the deceased would have wanted, who was closest to them, or who needs the money most. It follows a strict mathematical hierarchy.

The Surviving Partner Gets Priority

If the deceased leaves a surviving partner (married or de facto) and no children, the partner inherits the entire estate. Simple.

If the deceased leaves a surviving partner and children who are also children of that partner (no blended family), the partner still inherits the entire estate. The children receive nothing under intestacy rules in this scenario — the law assumes the surviving parent will provide for them.

The complexity starts with blended families.

The Blended Family Formula

If the deceased leaves a surviving partner and children from a different relationship, the estate is split using a precise formula:

1. The surviving partner receives all personal chattels (furniture, cars, household items)
2. The surviving partner receives the statutory legacy — currently $573,640 for deaths between 1 July 2025 and 30 June 2026 (this amount is indexed annually)
3. The surviving partner receives 50% of the remaining estate
4. The children share the other 50% equally

For most estates, the statutory legacy is large enough that the surviving partner receives the bulk of the estate. But for high-value estates — particularly those with significant property — the children from a prior relationship can receive a substantial share.

Example: A Victorian dies intestate with an estate worth $1.2 million. They have a current partner and two children from a previous marriage. The partner receives chattels, plus $573,640, plus 50% of the remaining $626,360 ($313,180). Total to partner: approximately $886,820. The two children from the prior relationship split the remaining $313,180 — roughly $156,590 each.

If There's No Partner

Without a surviving partner, the hierarchy is:

1. Children — share equally. If a child has predeceased the intestate but left their own children (grandchildren of the deceased), those grandchildren share their parent's portion.
2. Parents — share equally if both alive, or entirely to one if only one survives.
3. Siblings — share equally. If a sibling has died, their children take their share.
4. Grandparents — share equally.
5. Aunts and uncles — share equally, with cousins taking a deceased aunt/uncle's share.
6. The Crown — if no relatives can be found, the estate goes to the State of Victoria.

Letters of Administration

Without a will, there's no named executor. Someone must apply to the Supreme Court of Victoria for Letters of Administration — the intestacy equivalent of a Grant of Probate.

The application process is similar to probate: file through RedCrest-Probate, pay the tiered court fees (nil for estates under $250,000, up to $16,803.60 for estates over $7 million), publish a notice via POAS, and wait for the 14-day clearing period.

The key difference is that the administrator must also provide a bond — a financial guarantee that they'll administer the estate properly. The court can dispense with this requirement, and often does for straightforward estates, but it adds a layer of complexity that probate applications don't have.

Priority for appointment as administrator follows a hierarchy: the surviving partner has first right, followed by children, then parents, then siblings.

Indigenous Customary Distribution

Victoria's intestacy law includes a specific provision — Section 71B of the Administration and Probate Act 1958 — that recognises Aboriginal customary law. An Indigenous person with an interest in an intestate estate can apply to the Supreme Court for a distribution order that reflects the traditions, kinship structures, and customs of the deceased's community.

This provision overrides the standard western hierarchy when the court is satisfied that a customary distribution plan is appropriate. The application must include a formal plan prepared in accordance with community traditions.

De Facto Partners and Intestacy

A de facto partner has the same intestacy rights as a married spouse in Victoria. However, they must be able to prove the relationship existed. Evidence typically includes:

• Shared residence (lease, mortgage, utility bills)
• Financial interdependence (joint accounts, shared expenses)
• Duration of the relationship (generally two years or more, though exceptions exist)
• Social recognition as a couple

If the de facto relationship is disputed by other family members — common in intestacy situations — the partner may need to apply to the court for a declaration of the relationship before the estate can be distributed.

Family Provision Claims

Even with the intestacy formula, a person who feels they've been inadequately provided for can make a family provision claim under Part IV of the Administration and Probate Act 1958. Eligible claimants include the surviving partner, children (including adult children and stepchildren in some circumstances), former spouses who were receiving maintenance, and registered carers.

The claim must be filed within six months of the grant of letters of administration. The court considers the claimant's financial needs, the size of the estate, and any moral obligations the deceased had.

Family provision claims are particularly common in intestacy situations involving blended families, where the statutory legacy formula may leave some family members with less than they feel is fair — especially adult children from a prior relationship who receive nothing when all children are also children of the surviving partner.

Superannuation and Intestacy

Super doesn't automatically form part of the estate. If the deceased had a Binding Death Benefit Nomination directing the super to specific individuals, it bypasses the intestacy rules entirely. If there's no nomination, the super fund trustee decides who receives the benefit — and their decision is guided by superannuation law, not by the Administration and Probate Act.

Only when the trustee directs the super benefit to the "legal personal representative" (the estate) does it flow through the intestacy distribution formula.

The Victoria Survivor Benefits Navigator includes an intestacy distribution calculator that shows exactly how the estate splits based on your family structure and estate value.

See more Victoria guides →