Who inherits when there is no will?
When a person dies without a valid will in Queensland, the law decides who receives the estate. The outcome is set by the Succession Act 1981 Qld. It is not decided by a family vote and the estate does not automatically go to the government.
If there is no effective will, the Queensland intestacy rules divide the residuary estate. This is generally the estate property left after funeral expenses, administration expenses, debts and other liabilities have been dealt with.
If there is one surviving spouse and no surviving children or other descendants, the spouse receives the whole residuary estate. If there is a spouse and surviving descendants, the spouse receives $150,000 and the household chattels. The spouse also receives either one half or one third of what remains. The descendants receive the balance.
If there is no spouse, descendants inherit first. If there are no descendants, the estate passes to parents and then through the family groups fixed by the Act. The Crown receives the estate only if no eligible relative in that order survives.
What intestacy means in Queensland
A person is intestate if they die without a will, or if their will does not effectively dispose of all or part of their property. The second situation is called a partial intestacy. A valid executor may still administer a partial intestacy, but must distribute the affected property under the intestacy rules.
A failed gift does not always cause intestacy. The wording of the will, any substitute gift, the residue clause and the statutory rules about failed gifts must be considered first. Intestacy applies only to property that is not effectively disposed of by the will.
First identify what forms part of the estate
The intestacy rules apply only to property in the deceased estate. This can be a critical first question because some valuable assets pass outside the estate.
Property owned as joint tenants normally passes to the surviving joint owner by survivorship. The deceased person’s share of property held as tenants in common generally forms part of the estate. Superannuation may be paid to the estate or directly to another person, depending on the fund rules and any effective nomination. Assets owned by a company or held by a trustee are not necessarily estate assets merely because the deceased controlled the company or trust.
The estate asset list should therefore be checked before anyone calculates an intestacy entitlement or promises a distribution.
Who administers an intestate estate?
If there is no will, there is no executor appointed by the deceased. The Supreme Court of Queensland may instead issue letters of administration. The person named in the grant becomes the administrator.
An administrator has duties similar to an executor. The administrator must identify and collect estate assets, deal with liabilities, protect the estate, keep proper records and distribute the estate according to law.
A grant is often required before banks, share registries or land title processes will accept the administrator’s authority. It is not required for every estate. The answer depends on the assets, their value, how they were owned and the requirements of each asset holder.
Priority to apply for letters of administration
Rule 610 of the Uniform Civil Procedure Rules 1999 Qld gives a descending order of priority. It begins with the surviving spouse, then children, grandchildren or great grandchildren, parents, siblings, children of deceased siblings, grandparents, uncles and aunts, first cousins, and then anyone else the court may appoint.
The order is important but it is not absolute. The court may appoint another suitable person. An applicant below someone with higher priority generally needs evidence that each higher person has died, lacks capacity or has renounced. If there is more than one surviving spouse, the court may appoint one or more spouses or someone lower in the order.
The application process
An applicant normally publishes a notice of intention in the Queensland Law Reporter and sends a copy to the Public Trustee of Queensland. The applicant must allow at least 7 days after the Public Trustee receives the notice and 14 days after publication before filing the application. The prescribed application, affidavit, inventory and notice are then filed in the Supreme Court.
The court must not make an intestacy grant within 30 days after death unless urgent circumstances justify an earlier grant. A caveat or a dispute about priority can move the matter out of the routine grant process.
Who inherits under the Queensland intestacy rules?
The Act uses the word issue for children and further descendants. A person entitled under the intestacy rules must generally survive the deceased by 30 days. A child conceived but not yet born at death can be included if the child is born alive and remains alive for 30 days.
A spouse and no descendants
If there is one surviving spouse and no surviving issue, the spouse receives the whole residuary estate. Where more than one person qualifies as a spouse, they share the single spouse entitlement under special rules explained below.
A spouse and descendants
If there is one surviving spouse and surviving issue, the spouse first receives $150,000 and the household chattels.
If there is only one child branch, the spouse then receives one half of the residuary estate that remains. The child or the descendants representing that child receive the other half.
If there are two or more child branches, the spouse receives one third of the residuary estate that remains. The child branches share the other two thirds. A surviving child takes one branch. If a child died before the deceased but left surviving descendants, those descendants can represent that child and share that branch.
Only the balance left after the spouse’s first entitlement is shared. If no balance remains, the descendants receive nothing under the intestacy distribution.
What household chattels means
Household chattels is a defined term. It includes ordinary household furniture, linen, china, glassware, ornaments, domestic and garden appliances, household supplies and domestic animals owned by the deceased.
It does not include motor vehicles, boats, aircraft, racing animals, original works of art, trophies, clothing, jewellery or other chattels of a personal nature. Items outside the definition remain part of the estate and follow the ordinary distribution rules.
No spouse but surviving descendants
If there is no surviving spouse, the issue receive the whole residuary estate. Surviving children take equally if all relevant children survive. Where a child died first and left surviving issue, that child’s branch is taken by representation.
No spouse and no descendants
The parents inherit next. One surviving parent receives the whole residuary estate. If both survive, they receive equal shares.
If there is no surviving parent, brothers and sisters inherit. The children of a brother or sister who died first may represent that sibling. If no one in that group survives, grandparents inherit equally.
If there is no surviving grandparent, uncles and aunts inherit. A first cousin may represent an uncle or aunt who died first. Representation does not extend further than the children of a deceased sibling or the children of a deceased uncle or aunt.
If no spouse, issue, parent or statutory next of kin survives, the estate is bona vacantia and the Crown is entitled to it.
Who counts as a spouse?
For intestacy, a spouse can be a husband or wife, a qualifying de facto partner, or a civil partner. A separation alone does not end a marriage. A husband or wife who was still legally married to the deceased at death may remain entitled even if the couple had been living apart.
A de facto partner must have been living with the deceased as a couple on a genuine domestic basis for a continuous period of at least 2 years ending on the death. The relationship must still have existed at death.
Evidence may include the couple’s residence, the length and nature of the relationship, financial interdependence, property arrangements, mutual commitment to a shared life, care of children, household arrangements and how the relationship was presented publicly. No single factor decides the question and living at the same address is not enough by itself.
Estate Liam Rowan Dillon [2023] QSC 27 shows why the end date matters. The Court found that the de facto relationship had ended before death even though the former partners were still under the same roof for part of the relevant period.
More than one surviving spouse?
More than one person can qualify as a spouse. This can occur where the deceased remained married to one person and also had a qualifying de facto partner.
The spouses do not each receive a separate spouse entitlement. They share the one collective entitlement. It can be divided under a written agreement or a court order. In limited circumstances, the administrator may distribute it equally after giving the statutory notices and allowing 3 months to pass.
If the court is asked to decide, it makes the distribution it considers just and equitable. There is no starting assumption of equal shares and the court may award the whole spouse entitlement to one spouse.
Can a surviving spouse keep the shared home?
A spouse who ordinarily lived in a shared home at the time of death may have a statutory right to elect to acquire the deceased’s estate interest at its transfer value. This is not an automatic gift of the home.
If the spouse is the personal representative, the election generally must be made within 3 months after appointment. If the spouse is not the personal representative, the period generally runs for 3 months after the required written notice is given. Special restrictions apply to some mixed use, agricultural and multi residence properties and a court order may be needed.
The spouse may be able to set off an amount otherwise distributable to them against the transfer value. Early advice is important because the election period is short and the administrator is restricted from disposing of the interest while the right remains open, subject to an exception as a last resort to pay a liability.
Children, adopted children and stepchildren
Biological children and adopted children can inherit under the intestacy rules. An adopted child has succession rights through the adoptive family under Queensland adoption law.
A stepchild who was not adopted by the deceased does not inherit as a child under the Queensland intestacy order. The closeness of the relationship does not change that statutory result.
That does not prevent a qualifying stepchild from applying for family provision. For that separate jurisdiction, the definition of child includes a stepchild. The stepchild does not need to prove financial dependency merely to fall within the child category, although all circumstances remain relevant to whether any provision should be ordered.
Common Queensland intestacy disputes
Was there a qualifying de facto relationship?
A disputed de facto claim can determine both who inherits and who has priority to administer the estate. Useful evidence may be found in financial records, leases, messages, photographs, travel records, medical records and statements from people who knew the couple. The evidence should be preserved before accounts close or devices are lost.
Was there a valid or informal will?
A search may uncover a formal will, a copy of a missing will, a draft, a handwritten note or an electronic record. The legal effect of each document must be considered before anyone assumes the estate is intestate.
Who should be the administrator?
People with equal or competing priority may disagree about who should receive the grant. Conflict of interest, delay, hostility, capability and the need for an independent administration may become relevant to the Court’s discretion.
What belongs to the estate?
Disputes can arise over joint ownership, loans between family members, trust property, company interests, superannuation and property said to have been gifted before death. These issues should be resolved before the administrator fixes beneficiary shares.
Can an intestate estate be challenged?
Yes. Intestacy fixes the starting distribution but it does not remove the Court’s family provision jurisdiction. The Supreme Court may order further provision if the intestacy does not make adequate provision from the estate for the proper maintenance and support of an eligible spouse, child or dependant.
For family provision, child includes a biological child, adopted child and qualifying stepchild. The dependant category is narrower than ordinary usage. It covers a person who was wholly or substantially maintained or supported by the deceased and who was a parent of the deceased, the parent of a surviving child of the deceased who is under 18, or a person under 18.
For family provision only, the spouse category can also include a former husband, wife or civil partner who had not entered a new marriage or civil partnership and was receiving or entitled to maintenance from the deceased at death.
Eligibility does not guarantee an award. The Court considers whether adequate provision was made and, if not, what provision should be ordered in all the circumstances.
Time limits for a family provision claim
A person intending to claim should give the administrator signed written notice before 6 months from the death. An administrator who properly distributes after 6 months without notice of a claim may be protected from liability. The 6 month point is not the deadline for starting the court proceeding.
Unless the Court otherwise directs, the proceeding must be instituted within 9 months after death. The Court can permit a late claim, but that is discretionary. Delay can be especially harmful if the estate has already been distributed, so urgent advice is sensible.
An informal document may change the outcome
Section 18 of the Succession Act allows the Court to recognise a document that was not executed with the usual will formalities. The document must purport to state the deceased person’s testamentary intentions and the Court must be satisfied that the deceased intended it to form a will, an alteration or a revocation.
In Hall v Hall [2026] QSC 134, the Supreme Court recognised a handwritten note as an informal will after considering testamentary intention and capacity. A note or digital record is not automatically a will. The original record, device and surrounding evidence should be preserved and assessed before the estate is distributed.
Frequently asked questions
Does a spouse always inherit everything?
No. A spouse receives the whole residuary estate only if there is no surviving issue. If issue survive, the spouse receives the statutory first entitlement and a share of the remaining estate. The issue receive the balance.
Does a de facto partner inherit?
Yes, if the person satisfies the statutory spouse test. The relationship must have continued at death and the couple must have lived together on a genuine domestic basis for a continuous period of at least 2 years ending at death. Evidence is often required if the status is disputed.
Does a separated husband or wife inherit?
Potentially yes. Separation alone does not end the marriage. If the divorce had not taken effect before death, the husband or wife remains within the statutory spouse definition for intestacy. Other claims and existing family law orders may still affect the practical outcome.
Do stepchildren inherit?
Not under the intestacy order merely because they are stepchildren. A stepchild adopted by the deceased can inherit as an adopted child. A qualifying stepchild may also be eligible to apply for family provision.
What happens if a child died first?
If the deceased child left surviving issue, those descendants may take that child’s branch by representation. If the child left no surviving issue, there is no branch for that child under the statutory distribution.
Does the government take the estate?
Only if no eligible spouse, issue, parent or statutory next of kin survives. In that situation the estate is bona vacantia and the Crown is entitled to it.
Can the family divide the estate differently?
Adult beneficiaries with legal capacity may agree to alter the benefits they receive. This is commonly recorded in a deed of family arrangement. It cannot simply remove the rights of a minor or a person who lacks capacity.
Legal and tax advice should be obtained before any variation. Transfer duty, capital gains tax, asset protection and social security consequences may arise, and the way a transfer is documented can matter.
Is a grant always required?
No. A grant is often required but not for every estate. The need depends on the assets, ownership structure, value and the requirements of the institutions holding them. An administrator should not assume authority to deal with assets merely because they expect to inherit.
How ROC Legal can help
ROC Legal advises administrators, spouses, children and other family members about intestate estates across Queensland. This includes letters of administration, competing grant applications, de facto relationship evidence, informal wills, estate asset disputes, shared home elections and family provision claims arising from intestacy.
Early advice can help identify the correct beneficiaries, protect time limits and prevent distribution on the wrong basis.
General information only
This article provides general information about Queensland law. It is not legal advice and should not be relied on as a substitute for advice about particular circumstances.