Does a spouse automatically inherit everything in Queensland when their loved one passes?
This question and the conditions around how an estate is distributed are ultimately answered by whether the deceased left a Will behind/if they died without one (intestate) and whether they have any surviving children or not.
In this article, we will take a look at each scenario and the possibilities of how an estate might be administered when a loved one passes and leaves a spouse behind.
What Happens If The Deceased left A Will?
In the case where there is a Will that names an executor and its beneficiaries, the appointed executor is required to carry out estate distribution according to the wishes expressed in the Will by the deceased.
Outside of asset distribution, the executor has many duties to carry out and it is not always as clear-cut as you’d think — even with a Will.
As for the scenario of the surviving spouse, it may be that the deceased expressed their desire to leave their spouse everything to inherit in the Will, however, that does not mean that the spouse will necessarily inherit everything automatically.
Eligible parties are able to contest the Will should they:
- Question the validity of the Will; or
- If they feel they have been left without adequate provision.
For this reason, it is important that the executor collects the necessary documents as evidence to defend the Will and protect the interest of its beneficiaries.
Furthermore, there are special circumstances where the beneficiaries named in the Will may wish to alter the terms when it comes to asset distribution.
When this is the case, the executor and the beneficiaries need to draft a Deed of Family Arrangement.
What Happens If The Deceased Dies Intestate (i.e Without a Will)?
When someone that is married dies without a Will an administrator is appointed to distribute their estate according to state or territory law.
In this case, the spouse is eligible to inherit everything — unless the deceased and their spouse have surviving children. Where there are children, the estate is shared between the spouse and children in proportions specified under the state or territory law.
Where there is no Will detailing how the estate must be administered, the Succession Act 1981 (Qld) lays out which family members are eligible to inherit the estate and how much of it they are entitled to.
Which Family Members Are Eligible?
The rules of intestacy dictate the specific order of estate distribution or intestate succession to your surviving next of kin and generally speaking they are as follows:
- Spouse, de facto partner, or civil partner, Children (and grandchildren where parent deceased)
- Parents of the deceased
- Sisters and brothers
- Nieces and nephews
- Aunts and uncles
- The Crown — * if there are no surviving relatives
Determining which relatives take in which proportions can be complicated and requires expert advice.
It is important to note that in Queensland a stepchild is not considered as a child of the deceased for intestacy purposes, but that adopted children are.
However, stepchildren are eligible to make a family provision claim.
What Is The Best Way To Protect Your Assets?
Drafting a final Will is among the most important things one can do to protect the assets that they have worked hard to acquire over their lifetime.
Not only does it ensure that their spouse and dependents are taken care of according to their wishes, but that they can leave with peace of mind that the matters of their estate will not place unnecessary stress on their loved ones.
Estate planning encompasses so much more than just drafting a Will. Speak to Queensland Probate today about your estate planning needs to prepare for the future.