There is a compelling reason a person makes a will before they die, and that is to ensure their wishes are carried out in terms of distributing the estate they leave behind. Doing so prevents the stress, uncertainty and – let’s be honest – squabbling that can beset surviving family members as they work out who gets what from the deceased’s assets.
Should you die without having made a will during your lifetime, you are said to have died “intestate”. Specific intestacy laws, which in Queensland are included in the Succession Act 1981, will come into play if you haven’t left a will.
What do the intestacy rules mean for an estate?
The laws will determine how the assets of an estate are distributed in the absence of a will, including real estate, bank accounts, securities, shares and other assets. The court will appoint an administrator to conduct this process. Once an application is made by surviving family members for “Letters of Administration”.
Only a select group of relatives, in a predetermined order, can apply for this role, which is as follows: Surviving spouse (including a de facto partner); children; grandchildren or great grandchildren; parents; brothers and sisters; children of brothers and sisters; grandparents; uncles and aunts; first cousins; anyone else the court may appoint.
Once appointed, the administrator is then responsible for: Paying off outstanding debts left by the deceased; tracking down relatives and inheritors and ensuring that the estate is divided and received in accordance with the law.
It should be noted there are fees involved for a person who applies to become the administrator of a deceased relative’s estate, however these fees are payable by the estate
How is the estate divided where there’s no will?
The distribution of your estate, should you have died without making a will, depends on your life circumstances.
If you’re married or in a defacto relationship with children, your spouse will receive the first $150,000 of the estate, with the remainder split between the spouse and the children. If you were married or in a defacto relationship but had no children, then your spouse receives the whole of the residuary estate.
If you are single with children, then your children will inherit your estate in equal shares. If one of your children has died before you and they have children, then his or her share will pass to that child’s children (your grandkids).
If you’re single with no children, for example, your parents will generally inherit your entire estate, whether they are divorced or still together. If your parents have predeceased you, then your siblings will inherit your entire estate in equal parts. If one of your siblings died before you, but they had children, that sibling’s share will go to their children. If you have no surviving parents, siblings, or nieces and nephews, then your estate will be divided between your relatives of your mother’s side, and the relatives on your father’s side.
Disputing the asset split
In general, a Family Provision Application can be made by family member who is unhappy with the terms of a relative’s will and seeks a greater share of the estate, based on the needs of that person. This application can also be made if the deceased died intestate, though it is rarer.
The only people considered eligible in Queensland to make this sort of application are the spouse/s, children or dependants.
If you are uncertain about the next steps to take in the event a close family member died without leaving a will, it’s advised you consult a lawyer experienced in estate administration who can advise the best course of action to avoid a messy and drawn-out resolution of the estate distribution.
