Losing a loved one is often a deeply emotional and challenging experience. When a person passes away without a valid Will, it may also create legal complications that only add to the stress and confusion.
When a person dies without a Will, they are considered to have died intestate.
This means that the deceased wishes do not determine how their assets are distributed. Instead, the distribution of assets is governed by Queensland's intestacy laws.
There are many reasons that someone may not execute a Will during their life, but this choice will often leave lasting legal and emotional consequences for those administering the estate, and their loved ones. This is why we always encourage adults put a Will in place to express their wishes before it's too late.
Intestacy Laws In Queensland
In Queensland, when a person has died intestate, the distribution of the deceased person’s assets is governed by the Succession Act 1981 (the Act).
More specifically, Part 3 of the Act sets out the intestacy rules which govern the distribution of an estate to specific family members in a particular hierarchy.
This hierarchy starts with the spouse or de-facto partner and issue. Issue simply refers to any child and grandchildren (including any step, adopted or foster).
Where there is no spouse or issue, the estate is distributed to family members (next of kin) in the following order:
parents;
brothers and sister;
nephews and nieces;
grandparents, then
uncles, aunts and cousins*
*There is no provision to distribute an estate to relatives more remote than first cousins.
In-laws are not classified as next of kin, and are not considered in these intestacy laws.
Glossary Of Key Terms
We understand that some of these terms may be unfamiliar to people, but it's important to understand what they mean when discussing estate law.
Beneficiary: a beneficiary is any person or organisation (e.g. a charity) that receives a gift or benefit from a person’s estate.
Child: in addition to natural/biological children, this includes any stepchild, adopted child or foster child.
De facto: the partner of a deceased person living together with them on a genuine domestic basis for a continuous period for at least 2 years up the deceased's death.
Dependant: a spouse and/or child of the deceased, and anyone else wholly or substantially supported by the deceased at the time of their death.
Estate: this comprises all of the property (assets) and liabilities (debts) of a person after their death.
Intestacy: where a deceased has died without a Will, the administrator must distribute assets to specific relatives according to specific proportions under the rules of intestacy.
Issue: any child and grandchildren (including any step, adopted or foster)
Next of Kin: relatives to which an intestate estate is distributed.
Residuary Estate: the residue of the estate after all specific legacies (such as legal and funeral costs) have been paid.
Spouse: includes husband, wife, de facto partner and a former husband or wife. This includes same-sex couples irrespective of gender.
Survival: anyone entitled to receive a benefit of the estate must survive the deceased by at least 30 days.
What Happens To The Assets?
The answer to this question will ultimately depend on the deceased's personal relationships and assets. Where an individual dies intestate and has no surviving kin, the deceased’s assets will pass to the Crown (government).
Let's take a look at some common situations and what you may expect:
Remember that issue refers to any child and grandchildren (including any step, adopted or foster).
If the deceased is survived by a spouse, and has no issue
If there is only 1 surviving spouse, the spouse is entitled to the whole of the residuary estate.
If the deceased is survived by a spouse and issue
If there is only 1 surviving spouse, the spouse is entitled to $150,000 and the household chattels, and the following part of the residuary estate:
where there is only 1 child who survived, or who did not survive but left issue who survived, then half (1/2)
otherwise one-third (1/3)
The issue of the deceased are entitled to the balance of the residuary estate in accordance with section 36A of the Succession Act 1981. Whilst complex and dealing with a range of possible scenarios, generally this will be in equal shares between any surviving issue.
For example, if you had a spouse and two children, your children would each be entitled to 1/2 share of the balance of the residuary estate (noting your spouse's entitlements above).
If there is more than 1 surviving spouse, this will usually be in equal shares, unless there is an existing agreement between the spouses. We would strongly suggest an individual with multiple partners or spouses put together a comprehensive estate strategy through the preparation of a Will.
Where the deceased is not survived by any spouse, but is survived by issue
The issue are entitled to the whole of the residuary estate in accordance with section 36A (generally in equal shares).
Where the deceased is not survived by issue but is survived by a parent or both parents
Where there is one surviving parent, that parent is entitled to the whole of the residuary estate.
Where both parents survive the deceased, the residuary estate is divided in equal shares.
Where the deceased is not survived by issue or by a parent but is survived by next of kin
The next of kin are entitled to the residuary estate in accordance with section 37 (generally in equal shares).
Note that the Succession Act 1981 has a specific hierarchy in dealing with next to kin:
brothers and sisters (and their children); then
grandparents in equal shares; then
uncles and aunts (and their children).
There is no provision to distribute an estate to relatives more remote than first cousins.
Where the intestate is not survived by issue, by a parent or by next of kin
The estate is be deemed to be bona vacantia and the Crown is entitled to it.
Are There Any Disadvantages To The Intestacy Process?
This legislated formula can sometimes prove to be problematic, as the deceased assets may be distributed between more than one surviving spouse or to a relative who did not have much contact with the deceased. This can cause significant emotional and financial stress for all involved.
Dying without a Will often creates uncertainty fir your loves ones, and increases the risk of a dispute.
Whilst it may be optimistic to think that 'well it will all go to my family anyway' is enough, you will often have specific wishes that are not considered under intestacy laws.
How Can I Make Sure Specific People Get My Assets?
This is simple. Get a Will.
A Will is an important legal document outlining a person's wishes for when they pass away, and will include who will be their executor (who is responsible for carrying out the directions you make), beneficiaries (someone who will receive a benefit from your estate), specific gifts, funeral arrangements and requests, and legal guardians for underage children.
Without a Will, your assets will be distributed according the Succession Act 1981 as we've looked at above.
At RHC Solicitors, our simple Wills start from as little as $175, and can provide you with peace of mind that your wishes will be carried out after your death.
How Can I Stop Someone Contesting My Will?
In some circumstances, intestacy laws and succession can lead to disputes among family and loved ones regarding the distribution of assets. This is more common in complex family situations and blended families.
Whilst you cannot take away an individual's statutory right to make an inheritance claim, you can put specific strategies in place both during your life and after to mitigate the risk of an estate dispute.
The simplest of these is ensuring adequate provision is made for anyone with a valid claim against the estate. In Queensland, this means the deceased's spouse or de facto partner, child or stepchild, and any dependent that the deceased was substantially maintaining (where financially or otherwise) before their death.
To discover more about challenging a Will, read our recent article.
If you have any questions about challenging a Will, or just need more information about estate law and how we can help, don't hesitate to contact us.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication is that of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
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