What Happens If You Don’t Have a Will?
Lawyer Lilly Kimpton brings experience across commercial law, dispute resolution, and real estate administration to her work in wills and estates. Here, she explains what happens when someone dies without a Will in Victoria, and how disputes are usually preventable.
"I wish Dad had just made a Will."
"We didn't realise it would be this complicated."
"We assumed Mum could decide what to do with Dad's estate."
"He never got around to it."
These are conversations we have more often than you'd think. And in most cases, the situation was preventable.
Life doesn't operate on our timeline. If you pass away without a valid Will, your estate is distributed under a statutory framework set out in Victorian legislation - not according to your wishes. Understanding what that process looks like can be reason enough to put a Will in place now.
Administration of an intestate estate
Many people assume that if no Will is left, family members can simply decide what should happen.
That is not the case.
If you die without a Will in Victoria, you are said to have died intestate. Your estate is then dealt with under the Administration and Probate Act 1958 (Vic).
The law provides a fixed set of rules to determine how your estate is distributed, based on your family circumstances at the time of death. While a structure is still in place, it is not tailored to your personal wishes or family dynamics.
The law applies a framework, not your instructions
Whether you have a Will affects who has the legal authority to administer your estate and how your assets are distributed.
With a Will, you appoint an executor - someone with immediate authority to manage your estate and carry out your instructions.
Without a Will, there is no appointed executor. Someone must apply to the Court to be appointed as administrator. Until that happens, important steps can be delayed: accessing bank accounts, determining the value of assets, dealing with ongoing financial obligations. Once appointed, the administrator must distribute the estate strictly in accordance with intestacy legislation, not in accordance with personal wishes or family agreement.
If you're unsure how this process would apply in your situation, our team can help explain what it would look like in practice.
Who inherits if there's no Will?
Under Victorian intestacy laws, there is a statutory order of priority for inheritance:
Spouse or domestic partner only (no children): The partner inherits the whole estate.
Spouse or domestic partner + all children are shared children: The partner inherits the whole estate.
Spouse or domestic partner + children from another relationship: The partner receives personal chattels, the statutory legacy (plus interest) and half of the residue. The remaining half is shared equally between the children.
Children only: The surviving children share the estate equally. If a child has died before the deceased leaving children, their share passes to their own children.
No spouse/partner or children: The estate passes to other relatives in order, generally parents first, then siblings and their descendants, then grandparents, aunts, uncles and cousins.
No eligible relatives: The estate passes to the State of Victoria.
The outcome is not always as straightforward as many assume. Complexity increases with blended families, previous relationships, multiple partners, or questions about whether a relationship qualifies as a domestic partnership. What people expect and what the law provides are not always the same.
When things become more complicated
Blended families
A person dies leaving a partner and children from a previous relationship. The surviving partner may assume they are entitled to the whole estate, particularly where they have cohabited with the deceased for a significant period.
Under intestacy rules, however, unless the estate is worth less than the statutory legacy ($573,640 as of June 2026), the estate is divided. The partner receives personal chattels, the statutory legacy, interest on the statutory legacy, and a half share of the residue - while the balance is distributed equally among the children. This can create immediate practical and emotional complexity. The surviving partner may find their entitlement insufficient to retain the family home, while children receive an inheritance earlier or in circumstances they did not expect.
Unfinalised separation
A couple separates but never formally divorces or legally resolves financial arrangements. If one party dies without a Will, the surviving former spouse may still be recognised as entitled under intestacy law - even where the relationship had effectively ended. This can result in a former spouse receiving a substantial portion of the estate, which may create significant distress for any new partner or family left behind.
How long does it take?
Administering an estate without a Will is often more time-consuming. It must first be established that no valid Will exists, then determined who is entitled to apply for administration and who is legally entitled to inherit.
This can require searches for any existing Will, verification of family relationships, and identification of all potential beneficiaries - steps that often involve additional legal work, increased costs, and prolonged uncertainty. At a time of grief, these complications make an already difficult process harder.
The solution
A Will does not need to be complex. Its purpose is to provide clarity.
It allows you to:
Choose who receives your assets
Appoint someone you trust to manage your estate
Reduce uncertainty for those you leave behind
Most importantly, it ensures your estate is distributed according to your wishes, rather than a statutory framework that applies by default.
If you are considering your options, you may also find our blog posts 'Do you actually need a Will ?’ or 'Your complete guide to making a Will’ helpful for more detail on the process.
How we help
At McManus & Co Lawyers, we understand that making a Will is often delayed until it becomes urgent or personally relevant. Our role is to make the process clear and straightforward - explaining your options in plain language, helping you understand how the law applies to your circumstances, and guiding you through putting a plan in place that reflects your wishes.
Making a Will is usually simpler than people expect. And it is one of the most effective ways to reduce uncertainty and stress for those you care about.
If you’re concerned about your Will or want to begin the Will process, we encourage you to book a consultation with us.