What happens if you die without a will in Queensland?
What is intestate?
What are the intestacy rules?
How will intestate estate distribution work and who takes on the role of administering the deceased estate?
In this article, we answer all of these questions and explore intestate law to ensure that you can save your time and money by understanding the process and rules of estate distribution when a family member passes without a will in Queensland.
What Happens if You Die Without A Will in Queensland?
When someone dies without having drafted a legally valid will, they are said to have died
In this case, it is almost certain that the estate will not be distributed in accordance with one’s exact wishes, but that it will have to be distributed in accordance with the rules laid out in Part 3 of the Queensland Succession Act 1981.
What Are The Intestacy Rules in Qld?
The rules of intestacy dictates the order of estate distribution or intestate succession to your next of kin.
The intestate laws vary depending on a number of factors/relationship dynamics that we will break down below:
Married / De Facto Spouse With Children
If one is married and/or living together and has dependent children, their spouse or civil partner will be entitled to the first $150,000 of the estate as well as the household chattels plus one third of the residue.
The two thirds that are left over will be distributed equally between the deceased’s “issue” — meaning their children.
Married / De Facto Spouse With No Children
If one is married and/or living together and has no dependent children, the whole of their residuary estate will go to their spouse or civil partner — residuary meaning what is left over once the deceased’s debts and administration costs have been paid for.
Single With Children
If one is single with dependent children, the whole of their estate will be distributed among their surviving children. If, however, the deceased is not survived by their own children, but their children gave them grandkids, the grandchildren would each be entitled to a share of the estate.
Single With No Children
If one is single with no dependent children, their estate will be distributed among relatives in the following order:
- Brothers/sisters * if a sibling is deceased, their children (one’s nieces/nephews) would be entitled to a share of the estate;
- Uncles/aunts * if an uncle or aunt are deceased, their children (one’s first cousins) would be entitled to a share of the estate;
- The State * The Queensland Government.
Who Does The Law Not Make Provision For?
In the case of someone dying intestate, the law does not make provision to distribute one’s estate to relatives more remote than first cousins.
This means that in-laws or step-parents are not included.
It is also important to point out that any beneficiary must survive the deceased party by 30 days to be entitled to a share in the estate.
Who Administers An Intestate Estate?
Unlike when there is a legally valid will and a named executor of an estate, in the absence of a will Letters of Administration are a court order that are required to appoint an Administrator to deal with assets, pay debts and administer estate distribution.
The order of priority of persons eligible to apply for Letters of Administration are detailed as follows:
- The spouse that survives the deceased (including a de facto partner);
- Grandchildren or great grandchildren;
- Brothers and sisters;
- Children of brothers and sisters;
- Uncles and aunts;
- First cousins;
- Anyone else the court may appoint.
Before filing an application, one must search for a will. If no will is found, then one may proceed to file the following documents with the Supreme Court in Queensland:
- An affidavit stating your relationship to the deceased. This must include your eligibility and priority to other persons who may apply (according to order above);
- An affidavit confirming the advertisements and searches undertaken to locate the will;
- An application for Grant of Letters of Administration.
How Can Queensland Probate Help You?
Passing without a will takes the matter of estate distribution completely out of one’s hands and often leads to a complicated administration process that makes an already difficult situation even more complex and arduous.
To protect your family and their inheritance, it is highly recommended that you draft a will detailing your wishes.
Contact us directly to arrange a consultation to discuss using our services or come see us in person at our offices in Brisbane.