One of the main reasons people are encouraged to make a will during their lifetime is to provide some certainty about their affairs for their loved ones once they pass. But many people, for whatever reason, do not get around to making a will, or fail to make a legally valid will, meaning they die intestate. Intestacy is the legal situation that results from a person dying without leaving a valid will or a will that does not address all of the deceased’s assets.
In Queensland, intestacy follows specific legislative guidelines outlined in the Succession Act 1981 (‘the Act’). Understanding what intestacy entails, how it operates within the legal framework, and strategies to avoid it is essential for individuals and families.
What happens if a person dies intestate?
Queensland’s intestacy laws determine how the deceased’s estate is to be distributed among surviving relatives. The Act provides a statutory formula for the distribution of assets in the absence of a will. The distribution of assets depends on the deceased’s surviving relatives, with the Act prioritising distribution as follows:
- If the deceased had a spouse but no children, the entire estate typically goes to the surviving spouse (or de facto partner).
- If the deceased had a spouse and children, the estate is divided between the spouse and children. The spouse usually receives a portion, and the remaining assets are divided among the children.
- If the deceased had no spouse or children, the estate may go to other relatives, such as parents, siblings, or more distant relatives, depending on the circumstances. The law does not provide for distribution of the estate to relatives more remote than first cousins. In-laws and step-parents are not considered relatives and are not included in the intestacy rules.
A beneficiary must survive the intestate person by at least 30 days to be entitled to share in the estate.
How is the intestate person’s estate administered?
In cases of intestacy, the Supreme Court of Queensland may appoint an administrator to manage the deceased’s estate. The administrator’s role is similar to that of an executor in probate cases, responsible for gathering assets, paying debts, and distributing the estate according to intestacy laws.
An administrator may not deal with a deceased estate until the Supreme Court grants them ‘letters of administration’, similar to the ‘grant of probate’ given to the executor of a will. As with probate, financial institutions (including super funds) who hold assets belonging to a deceased estate will not release assets without sighting the letters of administration.
Before granting letters of administration, the court must be satisfied that the person applying can appropriately administer the estate. Eligible people who may apply to the court to be the estate’s administrator, in order of priority, are: the 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, or; anyone else the court may appoint.
The best ways to avoid intestacy
Create a valid will: A will allows individuals to specify how they want their assets distributed after their death. When drafting a will, it is essential to seek professional legal advice to ensure that it complies with Queensland laws and accurately reflects the individual’s wishes.
Review and update the will regularly: Life circumstances change, and it is crucial to review and update the will at regular intervals to reflect any changes in personal or financial situations. Marriage, divorce, birth of children, or acquisition of new assets are significant events that may necessitate updates to the will.
Communicate with family members: Open communication with family members about estate planning intentions can help prevent misunderstandings and disputes after death. Discussing the contents of the will and the reasons behind specific decisions can provide clarity and reduce the likelihood of challenges to the will’s validity.
The wisdom of seeking legal advice
Intestacy can become a complex process and result in additional legal fees and delays in the distribution of assets for beneficiaries. The lack of clear instructions in a valid will can make the process of administering the estate more complicating and time-consuming, and foment disputes among family members over asset distribution.
Seeking professional advice from ROC Legal and our estate planning professionals can help individuals create a comprehensive and legally sound will, as well as provide guidance on estate planning strategies, tax implications, and ways to minimise the risk of intestacy. Doing so will provide clarity and security for their loved ones after you’re gone.