Succession laws in Victoria

 

1.7   Succession laws regulate how property is administered and distributed on the owner’s death. In 2011, 36,733 deaths were registered in Victoria.2 Many of those who died left a valid will setting out how they wanted their property to be distributed. Property that is not disposed of by a valid will can be distributed under a statutory intestacy scheme. 

1.8   Victoria’s succession laws are found in:

  •  the Wills Act 1997 (Vic) and associated case law on the construction and validity of wills, and 
  •  the Administration and Probate Act 1958 (Vic) and associated case law dealing with the administration and distribution of assets. 

1.9    Other legislation specifies the powers of executors, administrators and others involved in finalising the deceased person’s financial affairs and the procedures they should follow.3 Succession laws also interact with property and taxation laws and laws that determine the legal status of relationships.  

1.10   Nevertheless, not all of a deceased person’s assets are necessarily managed and administered under succession laws. Succession laws concern the administration and distribution of the deceased person’s estate. The estate includes property that the person held or was entitled to at the time of their death. It may be real property (ownership or interest in land, a house or another type of building or immovable object attached to the land) or personal property (other assets such as money, shares, vehicles and other movable personal possessions).4  

1.11   The following property interests are not normally included in the estate, and therefore are not dealt with by succession laws:  

  • Death benefits payable by a superannuation fund, as they may be disposed of only by a trustee of the fund. However, fund members often make a binding death benefit nomination asking the trustee to pay their superannuation death benefit to the person they appoint as executor under their will. When this happens, the executor can then distribute the money as directed by the fund member’s will.5  
  • Payment under a life insurance policy to someone nominated by the insured person. The payment is made in accordance with the agreement between the insurance firm and the insured person. 
  • Jointly owned property, such as a house or a bank account, because this passes directly to the other owners.  

1.12   As the Commission’s terms of reference concern succession laws, they extend only to reviewing the rules that regulate the administration and distribution of property interests that comprise a deceased person’s estate.6

 

 

FOOTNOTES

 2     Victorian Registry of Births Deaths and Marriages, Fast Facts (3 January 2012) <http://www.bdm.vic.gov.au /utility/about+us /fast+facts />. 
 3     For example, trustee companies that act as administrators or executors of estates are regulated by the State Trustees (State Owned Company) Act 1994 (Vic) and the Corporations Act 2001 (Cth); and the Supreme Court’s procedures for administration and probate are set out in the Supreme Court (Administration and Probate) Rules 2004 (Vic).
 4     For a full description of the types of property that may be disposed of by will, see the Wills Act 1997 (Vic) s 4.
 5     Superannuation Industry Supervision Act 1993 (Cth) s 59 (1A).
 6     For a full discussion of the boundaries of succession law, see Rosalind Croucher and Prue Vines, Succession: Families, Property and Death: Text and Cases (LexisNexis Butterworths, 3rd ed, 2009) 91–137.

 

  

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Friday, January 25, 2013 - 14:15

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