If you die without a will you are said to have died intestate. This means that, instead of getting to choose who looks after your affairs and inherits your property and possessions, these matters will be determined according to formulas in the Succession Act 1981 (Qld) (“Succession Act”). You might be surprised by the results!
If you die with a will, you will have probably named one or more people as executors. The executor is entitled to apply to the Supreme Court for a grant of probate which evidences their authority to administer your estate however this is not necessary in all cases.
If you die without a will there is no executor and instead the person administering your estate is known as an administrator. A person wishing to be an administrator must apply to the Supreme Court for a grant of letters of administration (which is similar to a grant of probate).
Unlike an executor who may not necessarily need to apply for a grant of probate, the administrator has no right to deal with your estate until they have been granted letters of administration by the Supreme Court. Who may apply to be an administrator is determined by the Succession Act.
Who inherits your property if you die without a will depends on your circumstances when you die. In this post we’ll look at a few common scenarios.
Married Without Children
If you are married when you die your spouse will inherit your entire estate. There is no provision for any other person to inherit anything unless they can demonstrate dependency and successfully apply for further provision under the family provision rules. This is an expensive exercise the costs of which would usually be borne by your estate.
Married With Children
If you are married with children when you die your spouse will share your estate with your children. Your spouse is entitled to $150,000 plus your household chattels and a share of the rest of your estate (the residuary). If you have one child your spouse is entitled to half of the residuary with your only child entitled to the other half. If you have two or more children, the children will share two thirds of the residuary while your spouse will receive the remaining one third.
This is the case even where your children are under 18 years of age when you die. Usually, a person with a will in these circumstances would leave their entire estate to their spouse with their children only inheriting if their spouse dies before them. In these circumstances, intestacy is likely to produce a different result than if you were able to specify your wishes in a will.
Either the spouse or a child may apply for further provision under the family provision rules if adequate provision is not made pursuant to the intestacy rules.
De Facto Partner
Provided you have been living with your partner on a “genuine domestic basis” for at least 2 years when you die, your partner will be considered your spouse and the above rules will apply.
Interestingly, it is possibly to have two spouses under the intestacy rules if you have been living with your de facto partner for the required time period but not yet divorced your husband or wife. In such cases, your two spouses would share their entitlement. Specific provisions apply for working out the respective shares and further advice should be sought if this occurs.
Unmarried Without Children
This is the bit that really tricks people up. Often a single person without kids might have someone in mind that they would like to leave an inheritance to. Maybe not everything but at least something. This might be nieces and nephews, brothers and sisters or even a life-long best fried. Well, if you die without a will everything is going to your parents.
This is especially important in an age where a major asset for many of us is our superannuation. Generally, superannuation doesn’t form part of your estate and it is up to the trustee of the fund to decide who to pay it to (unless you have a binding nomination in place). If you are single without kids, you are unlikely to have any tax-preferred beneficiaries meaning it would be reasonable for the trustee, in the absence of any other evidence of dependency, to follow the intestacy rules increasing the amount to be received by your parents.
The only exception to this is if someone can prove they were dependent on you and otherwise meet the requirement in the Succession Act to apply for further provision under the family provision rules. As already mentioned, the cost if this can be high and will usually be paid from your estate.
If you die without a will, there’s a good chance your wishes won’t be reflected when dividing up your assets. A family provision application may help to rectify any injustices but this can come at considerable cost, usually borne by your estate. Even if the intestacy rules do match you preferred distribution, the added costs that often come with intestacy can easily outweigh the costs of a will.
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