No Will?

"Everything goes to the State"

You have probably heard people say that if someone dies without leaving a Will, "everything goes to the State". Right?


It is true that no-one can get Probate if there is no Will, but assets still go to the next of kin - not "The State".

There is an order in which the next-of-kin can inherit (in Victoria):

  1. A spouse (or "domestic partner") has the first right, and if there is no spouse
  2. then children, and if there are no children
  3. then parents, and if there are none of them
  4. then brothers and sisters, etc.

The next-of-kin have a right to apply (in the same order) for a certificate called "Letters of Administration" (instead of probate). The Letters of Administration certificate looks almost the same as a Probate certificate, and the application process is also the same. You use it the same way to authorise the release of assets to you.

Assets go to the next-of-kin according to a formula set by legislation that is different in each State, and the formulae can cause problems because they are so behind the times.

For example,  in Victoria the spouse is entitled to the first $100,000 plus 1/3 of the rest. After that the balance goes to any children of the marriage. 

That $100,000 plus 1/3 limit does not even ensure that your spouse keeps the marital home. The spouse gets the option of buying the home, but they would usually find it impossible to raise the finance to do so, and even if they could, their lifestyle might be destroyed by the cost of servicing the loan. (This issue was under discussion back in 2014 - without resoluton - and the problem has grown immeasurably worse because of the "housing affordability crisis" so often referred to in 2016- 2017. Hopefully there will be changes to legislation to protect the interests of surviving spouses).

In the meantime, the obvious conclusion is


(Our WILL KIT shows you how to do the vital stuff - name executor(s) & beneficiaries).

If you have a Will but no Executor

If you have a Will but there are no surviving executors, someone has to take the place of the executor - and that is usually a beneficiary under the Will.

If there are no surviving beneficiaries then the next of kin can apply. They apply for a special type of certificate ("grant") called Letters of Administration "with the Will annexed" (often called Letters "CTA").

You cannot use our Probate Kit for Letters of Administration applications.

NEXT: How to order our Probate Kit