If someone dies without a valid will in Victoria, a fixed statutory formula decides who inherits.
Australia does not have one set of intestacy rules — it has eight, and they produce genuinely different outcomes for identical families. This page covers what Victoria does. For the parts that are the same everywhere — why stepchildren miss out, how de facto status is proven, what happens with no living relatives — see what happens if you die without a will in Australia.
Where a Victoria estate has to be divided between a surviving partner and children, the partner does not simply take half. They first receive a fixed sum — the statutory legacy — and only the balance is shared.
In Victoria that sum is $591,390, set by section 70M for deaths on or after 1 July 2026. It is reset every financial year.
In Victoria the statutory legacy applies only where you leave a partner AND children who are not that partner's children.
That condition matters more than the dollar amount, and it is where the states diverge most sharply. The trigger is not a variation on a theme — it is a different rule:
This is why "my spouse will get everything" is true in some states and false in others, for the same family. In Victoria, the partner does take everything where all the children are also theirs.
Because the legacy is a fixed sum rather than a percentage, its real effect depends entirely on the size of the estate relative to that figure. On a $591,390 threshold, an estate below it passes substantially or wholly to the partner. An estate well above it is meaningfully divided.
For most Australian families the largest asset is the home, and this is where it bites: if the children's statutory share cannot be paid out of cash, the house may have to be sold to fund it — sometimes the house the surviving partner is living in. A will avoids that entirely, because you decide.
Under Part IA of the Administration and Probate Act 1958 (Vic), the estate passes to the first category with a living member:
The exact fractions are technical and depend on the family's shape. The national intestacy guide explains the traps that catch every state — stepchildren, separated spouses, competing partners, proving a de facto relationship.
Victoria charges on a sliding scale based on the gross value of the estate. Estates under $250,000 pay no filing fee, which is the most generous nil threshold in the country, but the top of the scale is also the steepest — an estate worth $7 million or more attracts a fee of $17,770.80. A nil fee does not mean probate is not required.
Victoria uses a tiered scale, so the filing fee rises with the value of the estate. Smaller estates fall into a low or nil band, which is a genuine advantage over the flat-fee jurisdictions — Queensland, Western Australia and the Northern Territory charge the same fee regardless of size, so a small estate there pays the full amount. The trade-off is at the other end: a large estate in a tiered jurisdiction can pay many thousands of dollars where a flat-fee state would charge a few hundred.
An important point about a nil band: it waives the fee, not the requirement. The family still has to apply for a grant, still has to prepare the paperwork, and still waits. Free is not the same as unnecessary.
Figures are as at FY2026-27, and most jurisdictions re-index on 1 July, so check the current VIC schedule before relying on one. These are court fees only — they exclude solicitor costs, and they exclude trustee company commissions, which are charged as a percentage of the estate and dwarf the filing fee on any substantial intestacy.
There is a second cost that never appears on a fee schedule: with no will there is no executor. A relative must apply to the Supreme Court of Victoria for letters of administration, which is slower than a grant of probate and usually needs the consent of others with an equal or better right to apply. Until that grant issues, banks and land registries will release nothing. The mortgage, meanwhile, keeps falling due.
Intestacy produces exactly the conditions that lead to a family provision claim: someone the statutory formula ignores entirely, such as a stepchild or a long-term partner whose relationship is disputed, and no document recording what the deceased actually wanted.
In Victoria, such a claim must be brought within 6 months of the grant of probate, under section 99 of the Administration and Probate Act 1958 (Vic).
Victoria's six month window runs from the grant of probate, not from the date of death, so the clock does not start until the estate is formally in the executor's hands.
Note carefully when the clock starts, because it is not the same across Australia and it is the detail that catches administrators out. New South Wales and Queensland run the period from the date of death. The other six jurisdictions run it from the grant of probate or administration. That distinction is worth months: an intestate estate can take a long time to reach a grant, and in a grant-based jurisdiction none of that delay eats into the claim period. In a death-based jurisdiction, it all does.
For an administrator this is the single most dangerous date in the process. Distribute the estate before the window closes and you may be personally exposed if a claim succeeds afterwards.
Everything above is a default that applies because nobody left instructions. A valid will overrides the statutory formula, names an executor so no one has to apply for administration, and lets you provide for the people Part IA of the Administration and Probate Act 1958 (Vic) does not recognise.
Before you make one, check the witnessing requirements in VIC — because a will that fails on execution puts your family straight back into this page.
Often, yes — in Victoria a surviving partner generally takes the whole estate where all the children are also that partner's children. Children from an earlier relationship change the result, and that is when the statutory legacy comes into play.
The first $591,390 under section 70M, plus personal effects, before the balance is divided. That is reset every financial year, and the figure quoted here applies to deaths on or after 1 July 2026. It only applies only where you leave a partner AND children who are not that partner's children.
6 months from the grant of probate, under section 99 of the Administration and Probate Act 1958 (Vic). The court can extend that period at its discretion, but an extension is far harder to obtain once the estate has been distributed.
Victoria uses a tiered scale, so the fee rises with the value of the estate and smaller estates fall into a low or nil band. Victoria charges on a sliding scale based on the gross value of the estate. Estates under $250,000 pay no filing fee, which is the most generous nil threshold in the country, but the top of the scale is also the steepest — an estate worth $7 million or more attracts a fee of $17,770.80. A nil fee does not mean probate is not required.
Then the estate is generally dealt with as an intestacy, unless the Supreme Court of Victoria exercises its dispensing power under section 9 of the Wills Act 1997 (Vic) to admit the document anyway. That is a court application with costs and delay, not a formality.
Victoria is the most digitally advanced jurisdiction for wills in Australia. It is the only state where a will can be electronically signed as well as remotely witnessed, under the formal remote execution procedure in section 8A. It also abolished the interested witness rule, so a gift to someone who witnessed your will still stands here, unlike in New South Wales, Queensland, Tasmania and the Northern Territory. Its statutory legacy of $591,390 is second only to New South Wales, and its nil probate fee threshold of $250,000 is the most generous in the country.
Not freely. The administrator is legally obliged to distribute according to Part IA of the Administration and Probate Act 1958 (Vic). Departing from it generally requires formal steps and can carry tax consequences. The general position across Australia is covered in the national guide.