The Law Handbook 2024

Chapter 9.4: Estates 911 set out below. A deceased person who dies without a will is referred to as ‘the intestate’. Intestacy also occurs when the deceased leaves a will that only distributes part of the estate (in which case the deceased is said to have died partially intestate) or where a will is made but is for some reason ineffective. The most common form of intestacy is where no will is made. Where there is an intestacy, letters of administration, not probate, must be applied for. Part 1A of the A&P Act sets out the intestacy provisions that apply in Victoria. In the intestacy sections of the A&P, the ‘partner’ of a person who dies means the deceased person’s spouse or domestic partner at the date of death. The following section and the table at the end of this chapter contains a summary of the intestacy provisions that apply for deaths that occurred after 1 November 2017. For deaths that occurred prior to 1 November 2017 specialist legal advice is recommended. If the intestate dies leaving a partner but no child or children, the surviving partner takes the entire estate (s 70J A&P Act). If there is a surviving partner and children only of the relationship between the partner and the intestate, the surviving partner takes the entire estate (s 70K A&P Act). If there is one surviving partner and children, not only of the relationship with the surviving partner, but other children of the intestate, the partner takes (s 70L A&P Act): a a statutory legacy of $451,909, indexed to CPI from 1 July 2018 (currently $539,100 until 30 June 2023) (s 70M A&P Act); b personal chattels of the intestate; c interest on the statutory legacy calculated at the legacy interest rate (s 3 A&P Act) from the date of death; d one-half of the balance of the estate over those amounts; e the children of the intestate share equally the other half of the residuary estate. Division 5 of Part 1A (ss 70Z–70ZE) details who is entitled to an intestate estate where the intestate had more than one partner at the time of death and children to those partners and other partners. Essentially the estate is shared between the different partners and the children, according to the statutory formula. The ranking of more remote next of kin who are entitled to an intestate estate is set out in the table at the end of this chapter. However, no next of kin more remote than a first cousin can now take an interest in an intestate estate. If there is no next of kin who is more closely related than a first cousin, the estate passes entirely to the State of Victoria. The next of kin must survive the intestate by 30 days in order to take on intestacy. Upon the making of the grant of letters of administration upon intestacy, the assets of the intestate are held on trust by the administrator. The administrator has discretion as to whether assets should be sold or transferred to the beneficiaries and may postpone the sale of assets where appropriate. This is a complex area of law, especially where there is more than one partner, or where the intestate had no immediate family. In these cases, it is recommended that legal advice be obtained. Finding a will On many occasions, members of the deceased’s family do not know whether the deceased left a will or, if so, where it can be found. If the will is not with the deceased’s personal papers, checks should be made with the deceased’s bank, solicitor, accountant or a likely trustee company. Advertisements should be placed in a daily newspaper and in the Law Institute Journal (at www.liv.asn.au) . Disadvantages of intestacy The main disadvantage of intestacy is that the deceased has no control over the distribution of their estate. The estate must be strictly distributed among the deceased’s nearest blood relatives, as defined in Part 1A of the A&P Act, whether they were close to the deceased or not. The estate must be divided in specific fixed proportions depending on the blood or domestic relationship between the deceased and their family members. As can be seen from the table at the end of this chapter, the statutory order is fixed, and no special account can be taken of particular wishes of the deceased, or the needs or claims of family members. Note that: 1 Since 8 November 2001, inheritance rights in respect to intestate estates have been given to domestic partners. Section 3 of the A&P Act states that a ‘domestic partner’ of a person