What is a will?
A will is a document that sets out how a person wants their property to be distributed after their death.
If a person wishes their property to be disposed of in a particular way after they die, then there is no other way to ensure this occurs than by making a will.
A will is valid even where the deceased person has changed names and/or address between the time the will was signed and their death. Similarly, a beneficiary (i.e. any person who receives benefits under a will) can receive benefits under a will where such changes have occurred, although it may be necessary for that person to provide evidence of their identity.
A will is still valid if it is not dated.
Note that the term “will” includes a codicil, which is a formal addition made to an earlier will.
In a will, one or more people are named to carry out the deceased person’s directions for disposing of their estate: these people are called the executors. The person making the will should ask proposed executors if they are willing to act. However, a will is still valid if no executor is appointed.
An executor can deal with an estate only after a will has been approved as valid by the registrar of probates, or by a judge of the Supreme Court exercising their probate jurisdiction. This approval is called a grant of probate and the document giving the approval is called the probate parchment.
Probate, in this context, is different from probate duty, which was the former payment of duties to the government on death (currently there are no state or federal probate or estate duties).
For more information, see Estates.
How is the deceased person’s property divided when there is no will?
When a person dies without leaving a will, that person is said to have died “intestate”; if a part of a will is not valid, then the person dies intestate in relation to that part.
In the case of deaths before 1 November 2017, if no will is made, the deceased person’s property is divided according to the scheme in part 1 division 6 of the Administration and Probate Act 1958 (Vic) (“A&P Act”).
In the case of deaths after 1 November 2017, if no will is made, the provisions of sections 70A–70ZL of the A&P Act determine who is entitled to inherit the deceased’s intestate estate. This may be directly against the deceased person’s wishes.
According to the scheme in the A&P Act, any property owned by a deceased person who dies intestate is distributed to the deceased person’s nearest blood next of kin. Under this scheme the property goes to the surviving spouse or domestic partner, the children of the deceased person, and to the parents or other next of kin (i.e. any blood relations). Next of kin can mean even remote relations, and searches may be necessary to find “lost” relatives (s 55). For more details, see “The distribution of an intestate’s estate to the next of kin: a summary table” in Estates.
In the case of deaths after 1 November 2017, where the next of kin is more remote than a first cousin, the deceased person’s estate is deemed to be bona vacantia (i.e. without an apparent owner) and passes to the State of Victoria.
If no will is left, an administrator (the traditional term for a female adminstrator is “administratrix”) is appointed by the court. The administrator is usually the person who receives the largest share of the deceased person’s estate.
The court may order that an administrator may receive an executor’s commission (i.e. a payment for acting as administrator), which is paid from the deceased person’s estate. Whereas, a person nominated as an executor in a will, particularly if they are related to the deceased, may decline to charge (s 65 A&P Act).
A surety or insurance bond may also be required by the registrar of probates in some cases to guarantee the proper completion of the estate (s 57 A&P Act; order 7 Supreme Court (Administration and Probate) Rules 2014).
The traditional terms for the deceased person is testator or testatrix, but in this chapter we use the gender-neutral term “willmaker”.