Distribution of Estate on Intestacy

By 6 October 2016Wills & Estates
Distribution Of Estate On Intestacy

I recently had a client ask me what would happen if he died without a Will. His initial concern was that the estate would “go to the government”. I reassured him that that would only happen if there were no relatives entitled under the legislation in place in each State dealing with this possibility.

In Victoria the answer is found in Division 6 of the Administration and Probate Act 1958. The Act sets out the rules that will apply to the distribution of the Estate, after payment of any debts and other expenses, depending on what family the deceased person had.

Spouse and / or Domestic Partner but no Children

If the deceased had a spouse or de facto partner but no children, the domestic partner would receive all of the residuary Estate.

Spouse and / or Domestic Partner and Children

In this scenario the Domestic Partner would be entitled to the personal chattels, the first $100,000 (called the statutory legacy) and one third of the balance.

The children of the deceased, regardless of age, would be entitle to an equal share of the remaining two thirds. There are special rules that apply in the event that a child has predeceased leaving children.

If two or more people claim to be entitled as Spouse or Domestic Partner there is a formula for dividing the share they each receive based on the length of their relationship with the deceased and whether there are any children of the relationship. You might wonder how this can happen, but consider the possibility that you have separated from your spouse, but not divorced, and then started living with someone else.

Children but no Spouse or Domestic Partner

If there is no spouse all the children of the deceased share equally in the Estate.

No Spouse or Children

The Parents of the deceased inherit if there is no spouse or children, and if they are both alive, they share equally.

If both parents have died before the deceased then the brothers and sisters of the deceased share the Estate. There are provisions for Nieces and Nephews to take their parents share if they have predeceased.

New South Wales

In New South Wales the rules are slightly different. The Chapter 4 of the Succession Act 2006 governs the distribution of intestate estates.

If there is a spouse and either no children or only children of the relationship, then the spouse is entitled to the whole of the estate.

Again if there is more than one person claiming as a spouse, there are provisions for the sharing of the estate.

In circumstances where there is a surviving spouse and children that are not the children of the spouse, the spouse is entitled to receive the personal chattels, a statutory legacy of $350,000 and half the balance. The children then share the remaining half equally.

As with the case in Victoria, other relatives of the deceased may be entitled to a share of the estate depending on the family make up at the time.

No Next of Kin

In both Victoria and New South Wales if there is no one who would fit in the categories set out in the legislation, the estate will pass to the Crown (i.e. the State Government).


So rather than leaving the distribution of your estate to the rules set out in legislation, we recommend that everyone have a valid and up to date will that reflects their wishes and takes into account the needs of their various family members.