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No Will? Who Gets Your Home, Your Savings and Your Super in Victoria, and What the Act Decides for You
Crownmark Lawyers | Wills & Estates
Depending on the survey, between four and six in ten Australian adults have no will. At the same time, the Productivity Commission expects about $3.5 trillion to change hands in Australia by 2050, the largest transfer of wealth in the country's history. Much of it will pass under rules the people who built it never read.
Die without a valid will in Victoria and the Administration and Probate Act 1958 writes one for you. It does not know about your partner of eighteen months, your stepchildren, the friend who should raise your children or the sibling you have not spoken to in a decade. This article sets out who inherits under the Act, which assets the Act never reaches, and what to put in place now.
A Will Only Controls Part of What You Own
Most people picture a will as the document that distributes everything. In practice, what you own leaves through three separate doors, and a will only opens one of them.
The estate. Assets in your sole name, such as bank accounts, shares, a car, a property held as tenants in common and your personal belongings, pass under your will, or under the intestacy rules if there is none.
Superannuation and the insurance inside it. Your fund's trustee pays your super under the fund's rules and your nomination, not under your will, unless the benefit is paid to your estate, which a binding nomination can require.
Jointly owned property. A home held as joint tenants passes to the surviving owner automatically, outside the will. A share held as tenants in common is part of the estate. Our article on buying property with someone else explains the difference.
Assets in a family trust or company. The trust deed or the company's constitution governs them. A will can pass control of the entity, not the assets themselves.
Who Inherits When There Is No Will in Victoria
Victoria's intestacy rules were rewritten in 2017 and now sit in Part IA of the Act. They turn on two questions: did you leave a partner, and did you leave children. A partner means a spouse, a registered domestic or caring partner, or a de facto partner who lived with you as a couple for at least two years immediately before your death or who is the parent of your child under 18.
A partner and no children. The partner takes the whole estate.
A partner, and every child is also the partner's child. The partner takes the whole estate. The children receive nothing on the first death, on the assumption that they will inherit from the surviving parent.
A partner, and a child from another relationship. The partner receives your personal belongings, a statutory legacy of $591,390 for deaths from 1 July 2026, indexed each year, with interest from the date of death until it is paid, and half of whatever remains. The children share the other half. If the estate is smaller than the legacy, the partner takes everything.
Two partners. A spouse you have not divorced and a new domestic partner can both qualify. They can agree in writing how to divide the partner's share or ask the Supreme Court for a distribution order, and if neither happens within three months of the administrator's notice, the share is divided equally between them.
No partner. Your children share the estate equally, with the children of a child who has died taking that child's share. If there are no children, the estate moves to your parents, then your siblings, then grandparents, then aunts and uncles, with first cousins standing in for an aunt or uncle who has died. Beyond first cousins there is nobody, and the estate passes to the State of Victoria.
⚠️ Separated but not divorced? Your spouse is still your partner. Separation changes nothing under these rules. Only a divorce or an annulment removes a former spouse, while a new de facto partner has to prove the relationship, usually by affidavit to the Supreme Court, at the worst possible time. Stepchildren who were never adopted are not children for these purposes and receive nothing on intestacy, although they can still make a family provision claim.
Three Families the Default Rules Get Wrong
The blended family. Where the children are all shared, the surviving partner takes everything and the children depend on that partner's goodwill and that partner's will. Where a child is from another relationship, the children's half can put pressure on the family home, although the partner has a right to buy it from the estate at its value at the date of death, with the price set off against their own share.
The couple together for less than two years. Unless there is a child of the relationship, an unmarried partner of eighteen months is not a partner at all. The estate goes to parents or siblings, and the person who shared your home has to apply to the court for provision as a dependant, if they can.
The single person in their twenties or thirties. The estate may be small, but the superannuation and the life insurance held inside it can run to several hundred thousand dollars. None of it is covered by the intestacy rules. The fund decides, and disputes over who should receive a death benefit, often between a parent and a de facto partner, are a growing category of complaint to the Australian Financial Complaints Authority.
Your Super Is Paid by Your Fund, Not Your Will
Superannuation is held on trust by your fund, and on your death the trustee pays it as a death benefit. Four things decide where it goes:
The nomination. A non-binding nomination is a wish the trustee may follow. A binding nomination must be followed if it is valid, and the common form lapses after three years unless the fund offers a non-lapsing nomination. A reversionary pension continues to the reversionary beneficiary automatically.
Who can be nominated. A spouse, a child, a person financially dependent on you, a person in an interdependency relationship with you, or your legal personal representative, which sends the benefit into your estate to pass under your will.
Tax. A benefit paid to a spouse or a child under 18 is generally tax free. A benefit paid to an adult child is usually taxed on its taxable component, commonly at 15 per cent plus the Medicare levy, so a nomination can carry a six-figure tax difference.
Insurance. Life cover held inside super is paid as part of the death benefit and follows the same path, and the insured portion paid to an adult child can carry a higher rate of tax.
⚠️ Check the date on your nomination. A binding nomination made more than three years ago may have lapsed without anyone telling you. If it has, the trustee decides, and the people you listed become an indication of your wishes rather than an instruction.
Marriage Cancels Your Will. Divorce Cancels Part of It.
Under the Wills Act 1997, marrying revokes a will you made earlier, unless the will was made in contemplation of that marriage. Gifts to, and the appointment as executor or guardian of, the person you married survive, but everything else in the document falls away. Divorce works the other way: gifts to a former spouse and their appointment as executor are revoked, and the former spouse is treated as having died before you. Separation has no effect at all, and neither does starting or ending a de facto relationship. A will made before a new relationship stays exactly as it was.
Your Digital Life Needs an Inventory, Not a Password List
Cryptocurrency, online bank and share accounts, frequent flyer points, domain names, photo libraries and social media accounts all have value or meaning, and an executor can only deal with what they can find. Keep an inventory of accounts and where the access details are held, and store it with your will rather than in it. A will becomes a public document once probate is granted, so passwords and seed phrases never belong in it. Apple, Google and Facebook each let you nominate a legacy contact or set what happens to an inactive account, which takes minutes and saves an executor months.
What No Will Costs the People You Leave Behind
A harder application. Instead of probate, a family member applies to the Supreme Court for letters of administration, proving the family tree, the relationships and the absence of a will, with filing fees that scale with the size of the estate.
Time. Every de facto relationship and every missing relative must be evidenced, and the estate cannot be distributed until the grant is made.
No guardian. A will is where parents nominate a guardian for their children. Without one, the decision is left to the family and, if they disagree, to a court.
Disputes. A family provision claim can be made against an intestate estate as well as a will, generally within six months of the grant. In a survey reported this year, 57 per cent of Gen Z respondents expected an inheritance dispute in their own family.
What to Put in Place This Month
Fix the super nomination. Check that it is binding, current and, if your fund offers it, non-lapsing, and think about who will pay tax on it.
Appoint your attorneys. A will takes effect when you die. An enduring power of attorney and a medical treatment decision maker cover the years before that. Our article on why an enduring power of attorney cannot wait explains both.
Write the inventory. Accounts, policies, property, debts, digital assets and where the documents are.
Review on every life event. Marriage, separation, divorce, a new partner reaching two years, a child, a property purchase or a business all change the answer. If nothing happens, review it every three to five years.
Crownmark Lawyers prepares wills, enduring powers of attorney and medical treatment decision maker appointments, advises on superannuation nominations and acts for executors and administrators in Victoria and New South Wales. Under Crownmark Assured Pricing, the fee is fixed and agreed before the work begins. If you do not have a will, or yours was written before a marriage, a separation, a child or a business, we can put the right documents in place without delay.
Harjit Mahindroo
Managing Partner
| CONTACT US
Phone: 1800 884 751
From Overseas: +61 3 8595 4338
Email: info@crownmarklaw.com.au
This article is general information about wills, intestacy and estate administration in Victoria and is current as at October 2026. The statutory legacy figure applies to deaths on or after 1 July 2026 and is indexed annually. Superannuation and tax outcomes depend on your fund's rules and your circumstances. It is not legal, financial or tax advice and does not take account of your particular circumstances. For advice on your estate plan, please contact us or another qualified practitioner.
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