If a person dies without a will in Brisbane or Queensland generally, they are said to have died "intestate". When a person dies intestate, their assets will be distributed according to the laws of intestacy in the state of Queensland. In this article, we discuss important insights into inheritance laws and estate distribution procedures if a person dies without a will in Queensland, based on the legislation current as at the date of this article.
If a person dies intestate, their estate will be divided in accordance with the intestacy laws. The Succession Act 1981 (Qld) establishes the intestacy laws for estates in Brisbane and Queensland generally, which specify how a person's inheritance shall be divided if they pass away without leaving a valid will.
The Intestacy Rules in Qld
The rules of intestacy are quite rigid and the formula set down in The Succession Act 1981 must be followed where someone dies without a will. The rules provide for the below:
If there is a surviving spouse or de factor partner and children, a partial entitlement to be provided to the deceased’s spouse or de facto partner and then balance directly to any children, equally.
If there is a surviving spouse or de facto partner but no children, then the spouse or de facto partner get the entirety of the estate.
If the deceased does not have a spouse or de facto partner (ie. they have separated or the spouse/partner has predeceased), then their estate will be divided equally between their children.
If the deceased does not have any children, their estate will be divided equally between their parents.
If the deceased does not have any surviving parents, their estate will be divided equally between their siblings.
If the deceased does not have any surviving siblings, their estate will be divided equally between their grandparents.
If the deceased does not have any surviving grandparents, their estate will be divided equally between their uncles and aunts.
If there are no living relatives, the estate will be distributed to the state.
Why is a Will important?
While the rules above are quite comprehensive, they do not consider any specific circumstances that would otherwise be considered by someone when they make a will. For example, in the first instance where there is a spouse and children surviving, a spouse or de facto partner can often be left inadequately provided for leaving them in a difficult financial position to cater for their continued wellbeing as a large share of the estate goes directly to the children without consideration to the needs that the spouse or de factor partner may have. Similarly, where there is a child with a disability that results in them being more financially dependent than others, the rules don't allow for disproportionate distribution of the estate to cater for their greater needs. A person with no remaining family to inherit under the rules may wish to leave their estate to good friends or to charities, however the rules would not allow for this.
It quickly becomes apparent that lack of flexibility in the rules of intestacy can often lead to unfair outcomes, particularly where there are blended families or dependent relatives who are left out of the distribution entirely. It is therefore always an intelligent choice to make a valid will, even if you think you don't have very much to leave behind. A Will allows you to choose who you want to benefit from your Estate and in what proportions, to ensure that those you care for are adequately looked after having regard to their circumstances.
The laws of intestacy, it is crucial to note, do not take into account the preferences of the deceased or the particular circumstances of their family and loved ones. Therefore, even if you believe you don't have many assets, it is always essential to create a will so that you may make sure your assets are divided in accordance with your intentions.
It is also good to consider the costs that not having a will is likely to impose upon your estate and family. If you die without a will then application must be made to the Supreme Court for the court to determine who is entitled to administer the Estate. This process is called an application for ‘Letters of Administration’ and can be quite an expensive process depending on the complexity of the Estate.
Conclusion
If you have any questions or worries regarding what will happen if someone passes away without leaving a will, it is crucial to speak with an expert solicitor. By taking proactive measures now, you can be sure that when the time comes, your loved ones will receive the care they need. Drakos and Company Solicitors can assist you with estate planning in Brisbane including wills, powers of attorney and advanced health directives. Please contact our office to make an appointment with one of our friendly solicitors to discuss you requirements on a confidential basis.