When someone dies without a valid will, the law says they have died intestate. In Queensland, the Succession Act 1981 (Qld) then decides who inherits, using a fixed formula based on family relationships. What the person wanted, or told their family they wanted, is not part of that formula.
This page explains the Queensland intestacy rules, who can apply for letters of administration, which assets fall outside the rules, and what can be done when the result seems unfair. If you are dealing with the estate of someone who died without a will, our estate lawyers can help you work out what happens next.
What does it mean to die intestate?
A person dies intestate when they leave no valid will. A person can also die partially intestate. That happens when there is a valid will, but it does not effectively deal with everything the person owned. Whatever the will does not deal with passes under the same statutory rules that apply when there is no will at all.
Before anyone assumes there is no will, it is worth looking carefully. A document that was never properly signed and witnessed can sometimes still be accepted by the court as a will. We explain how that works further down this page.
What happens when someone dies without a will in Queensland?
Three things follow.
The law decides who inherits. The Act sets out a strict order of entitlement based on family relationship. There is no discretion to take into account who was closest to the person, who cared for them, or what they said they wanted. The main ways the result can be changed are a family provision order of the court, or a properly documented agreement between the adult beneficiaries.
There is no executor. Someone has to apply to the Supreme Court of Queensland for a grant of letters of administration. Until the court makes that grant, nobody has the legal authority of an administrator to collect the assets, pay the debts or distribute the estate.
It can take longer and cost more. The person applying has to establish their right to apply, relatives sometimes have to be traced, and families do not always agree about who should be in charge.
Who inherits under the Queensland intestacy rules?
The Act sets out an order of entitlement. Each group inherits only if there is nobody in the group before it.
The formula applies to what is left after the deceased’s debts, funeral expenses and the costs of administering the estate have been paid. A person must also survive the deceased by at least 30 days to inherit. If they do not, the estate is distributed as though they had died first.
A spouse and no children
If the deceased leaves a spouse but no children or other descendants, the spouse inherits the whole estate. Who counts as a spouse is explained further below.
A spouse and children
If the deceased leaves a spouse and children, the estate is divided between them. The spouse receives the household chattels, the first $150,000, and a share of whatever remains. That share is one half if there is only one child, and one third if there are two or more children. A child who died before the deceased but left children of their own is counted for this purpose. The children share the balance equally, and the share of a child who died earlier passes to that child’s own children.
Household chattels are ordinary household contents, such as furniture, appliances, linen, kitchenware and domestic pets. They do not include cars, boats, clothing, jewellery, original artwork or other personal items, which form part of the rest of the estate.
The $150,000 figure is written into the Act itself and has stayed the same since 1998.
Here is a simple example. Suppose the estate is worth $600,000 after debts and costs, not counting household chattels, and the deceased leaves a spouse and two children. The spouse receives the household chattels and the first $150,000. Of the remaining $450,000, the spouse receives one third, which is $150,000, and the two children share the other $300,000. The spouse ends up with $300,000 plus the household chattels, and each child receives $150,000.
This rule can produce an outcome nobody intended. Many people assume a surviving spouse inherits everything. In Queensland that only happens where there are no children or other descendants, and it makes no difference whether the children are also the surviving spouse’s children. Children from an earlier relationship, including adult children, share in the estate in the same way.
The family home and the spouse’s right to keep it
Where the main asset is the home the couple lived in, the formula can leave the surviving spouse without a large enough share to keep it. The Act gives some protection. A spouse who was ordinarily living in the home when the deceased died can elect, in writing, to acquire the deceased’s interest in the home at its value at the date of death, less any mortgage.
The time limits are short. Generally, the election must be made within three months after the administrator gives the spouse written notice of the right or, if the spouse is the administrator, within three months after their appointment. In some situations a court order is needed before the election can be made.
The spouse can ask the administrator to obtain a valuation from a registered valuer to help them decide. While the right to elect is open, the administrator generally must not sell or otherwise dispose of the deceased’s interest in the home.
The election is a right to take the home at its value. It is not an extra gift on top of the spouse’s share, so it is important to get advice about how the figures work before deciding.
None of this applies if the home was owned as joint tenants. In that case the deceased’s interest passes automatically to the surviving owner and does not form part of the estate.
Children and no spouse
If there is no spouse, the deceased’s children share the whole estate equally. If a child died before the deceased and left children of their own, those grandchildren share the portion their parent would have received.
Adopted children are treated in the same way as other children, and it does not matter whether the deceased was married to the child’s other parent. A child who was conceived before the death and born afterwards is also included, as long as the child is born alive and lives for at least 30 days.
No spouse and no children
If there is no spouse and no descendants, the estate passes to the deceased’s parents, in equal shares if both are alive.
If neither parent survives, the estate passes to the deceased’s brothers and sisters in equal shares. If a brother or sister died earlier, their children, who are the deceased’s nephews and nieces, take that brother or sister’s share. A brother or sister who shares only one parent with the deceased is treated in the same way as one who shares both.
If there are no brothers or sisters, and no nephews or nieces entitled in their place, the estate passes to the grandparents in equal shares. If no grandparent survives, it passes to the aunts and uncles. The children of an aunt or uncle who died earlier, who are the deceased’s first cousins, take that aunt or uncle’s share.
The rules stop there. More distant relatives, such as the children of a nephew or niece or the children of a first cousin, cannot inherit under the intestacy rules.
When the estate goes to the State
If nobody in any of these groups survives the deceased, the law treats the estate as ownerless and it passes to the Crown, meaning the State of Queensland.
Who counts as a spouse, including de facto partners?
Under the Succession Act, a spouse can be a husband or wife, a civil partner in a registered civil partnership, or a de facto partner.
A de facto partner only counts as a spouse if the couple had lived together as a couple on a genuine domestic basis for a continuous period of at least two years ending on the date of death. The gender of the partners does not matter.
Whether a de facto relationship existed depends on all the circumstances. The court can look at matters such as how long the relationship lasted, whether and how the couple lived together, their financial arrangements, their commitment to a shared life and how they presented the relationship to others. Sharing a house is not enough on its own.
A former husband or wife who was divorced from the deceased is not a spouse under the intestacy rules. A husband or wife who was separated but not divorced still is.
What if there is both a married spouse and a de facto partner?
This can happen where a marriage ended in separation but never in divorce, and the person later lived with a new partner for some years. Because separation does not end a marriage, the married spouse and the de facto partner can both qualify as spouses at the same time.
When that happens, the spouse’s entitlement is shared between them. They can agree in writing how to divide it. Either of them, or the administrator, can instead ask the court to decide. The court divides the entitlement in the way it considers just and equitable. It does not start from an assumption of equal shares, and it can give the whole entitlement to one of them.
If there is no agreement and no court application, the administrator can give each spouse a written notice. Once three months have passed without an agreement or an application, the administrator can divide the entitlement equally.
The result can be that a spouse who had been separated from the deceased for many years is entitled to part of the estate, while the partner the deceased actually lived with receives less than they expected. Only a divorce ends a marriage for this purpose. A separated person who wants to control who inherits needs a will, and even then a separated spouse may still be able to bring a family provision claim.
Who misses out under the intestacy rules?
This is where the intestacy rules can differ sharply from what families expect.
Stepchildren do not inherit. A stepchild who was never legally adopted has no entitlement under the intestacy formula, however long they were part of the family. A stepchild may still be able to bring a family provision claim, which we explain below.
Relatives by marriage do not inherit. That includes a husband’s or wife’s parents and siblings, and it includes stepparents.
Carers and friends do not inherit. Neither does a partner who does not meet the legal definition of a spouse, no matter how close the relationship was or how much care they gave.
Charities do not inherit. Causes the deceased supported during their life receive nothing under the intestacy rules.
Superannuation, jointly owned property and other assets outside the estate
The intestacy rules only apply to property that forms part of the deceased’s estate. Some of the most valuable assets often pass another way, so the asset a family is most focused on may not be governed by the intestacy rules at all.
Superannuation
Superannuation does not automatically form part of the estate. If the deceased made a valid binding death benefit nomination, the fund must generally pay the benefit to the people nominated. Many binding nominations lapse after three years unless they are renewed.
Without a valid binding nomination, the trustee of the fund usually decides who receives the benefit, choosing between the deceased’s dependants and the estate. Only money the fund pays to the estate is distributed under the intestacy rules.
Jointly owned property
Property owned as joint tenants, such as a home or a bank account in both names, passes automatically to the surviving owner. Property owned as tenants in common is different. The deceased’s share forms part of the estate and passes under the intestacy rules.
Life insurance
A life insurance policy held outside superannuation may be paid directly to a nominated beneficiary, depending on the terms of the policy. It is worth checking how each asset will pass before making assumptions about who will receive it.
Applying for letters of administration in Queensland
When there is no will, the person who manages the estate is called an administrator. An administrator is appointed by the Supreme Court of Queensland through a grant of letters of administration.
The Uniform Civil Procedure Rules 1999 (Qld) set out the order of priority the court usually follows. It starts with the surviving spouse, then the children, then grandchildren or great grandchildren, then parents, then brothers and sisters, then the children of brothers and sisters who have died, then grandparents, then aunts and uncles, then first cousins, and finally anyone else the court sees fit to appoint.
A person applying has to show why everyone higher in the order is not entitled to priority, for example because they have died, lack capacity or have formally renounced their right to apply. The order is not absolute. The court can appoint someone outside the usual order where that is appropriate, and where there is more than one surviving spouse it can appoint one or more of them, or someone lower in the order.
Before applying, the applicant must publish a notice of intention to apply for a grant in the Queensland Law Reporter and give a copy to the Public Trustee. The application cannot be filed until 14 clear days have passed after the notice is published, and until at least seven days after the Public Trustee receives its copy. Anyone who objects to the proposed grant can lodge a caveat with the court registry.
What does an administrator have to do?
An administrator’s role is broadly the same as an executor’s. They must collect and protect the assets, pay the debts and any tax, keep proper records, and then distribute what is left strictly in accordance with the statutory formula.
The formula is not a starting point for negotiation. An administrator who distributes the estate differently because the family agrees it would be fairer can be held personally liable to the people who should have received it.
Timing matters too. The Act protects an administrator who makes a proper distribution at least six months after the death without having received written notice of a family provision claim. If notice of a claim has been received, the position is more complicated, and advice should be taken before anything is distributed.
Can an intestate estate be challenged?
Yes. Disputes are not limited to estates with a will. These are some of the issues that can arise when there is no will.
Family provision claims
The intestacy formula does not always produce a fair result. A spouse, child or dependant of the deceased who has not been left adequate provision for their proper maintenance and support can apply to the court for further provision from the estate. This is called a family provision claim, and it applies to intestate estates in the same way as estates with a will. Claims are brought in the Supreme Court or, in some cases, the District Court.
Stepchildren are treated as children for this purpose, so a stepchild who inherits nothing under the formula may still have a claim. Whether someone qualifies as a stepchild depends on the circumstances, including the relationship between the deceased and the stepchild’s parent. A former husband or wife who was divorced from the deceased may also be able to claim, if they were receiving, or entitled to receive, maintenance from the deceased and had not remarried or entered a new civil partnership.
The word dependant has a narrow meaning here. It covers a parent of the deceased, the parent of the deceased’s child under 18, or a person under 18, and only if they were being wholly or substantially supported by the deceased at the time of death. Carers and friends who do not fall within these groups cannot bring a claim.
Time limits for family provision claims
Strict time limits apply, and they run from the date of death. Proceedings must be started within nine months of the death unless the court allows otherwise, and an extension of time is never guaranteed.
Written notice of an intended claim should also be given to the administrator within six months of the death. After six months, an administrator who has not received notice may be able to distribute the estate without being liable to the person claiming, which can leave little or nothing to claim against.
If you think you may have a claim, get advice early rather than waiting for the administration to finish.
Disputes about who should be the administrator
Two relatives with equal priority may both want to apply, or one may apply over the objection of others. The court has the final say on who is appointed, and it can be asked to resolve the disagreement.
Disputes about whether someone was a spouse
Whether a de facto relationship existed, and whether it lasted at least two years, can decide who inherits most of the estate. If this is disputed, the Supreme Court can be asked to declare whether a person was the deceased’s spouse.
Living under the same roof usually matters a great deal, but it is not always decisive. In a 2023 case, the Supreme Court declared a woman to be the surviving de facto spouse even though she had not lived full time in the deceased’s home for about six years before his death. She had moved out for reasons unrelated to the relationship, and in every other respect the couple had continued their life together.
Whether a document is actually a will
A document that was not properly signed and witnessed can still be accepted as a will if the Supreme Court is satisfied the person intended it to operate as their will. The document does not have to be on paper. In a 2017 case, the Supreme Court of Queensland accepted an unsent text message saved on a man’s phone as his will. Our page on DIY wills and online will kits explains what commonly goes wrong with homemade documents.
If a document is accepted as a will, the estate is distributed under that document rather than the intestacy rules. These applications need evidence, and the court decides who pays the legal costs, so it should not be assumed the costs will come out of the estate.
How the administrator is handling the estate
Beneficiaries sometimes have concerns about delay, a failure to account, or assets being dealt with improperly. An administrator owes duties to the people entitled to the estate, and the court can intervene where those duties are not being met. This is part of our estate litigation practice.
How to avoid dying intestate
Make a valid will, keep it up to date, and store the original somewhere your executor can find it. Review it after any major change in your life, such as a marriage, separation, divorce, new relationship, the birth of a child or a significant change in your assets.
Life events can change an existing will. In Queensland, getting married generally revokes an existing will, and a divorce or the end of a de facto relationship generally cancels gifts to the former partner. For a married couple, separation on its own does not change the will.
Also deal with the assets a will does not reach. Check that any superannuation death benefit nomination is current and valid, review any life insurance nominations, and understand how jointly owned property will pass.
ROC Legal does not prepare wills. If that is what you need, any solicitor practising in succession law can help. We act in estate administration and in disputes about estates.
Frequently asked questions about dying without a will in Queensland
Who inherits if there is no will in Queensland?
The spouse and children come first. If there is a spouse and no children, the spouse takes everything. If there is a spouse and children, the estate is shared between them under a statutory formula. If there is no spouse and no children or other descendants, the estate passes to the parents, then the brothers and sisters, then the grandparents, then the aunts and uncles. Nephews, nieces and first cousins can take a share in place of a parent who died earlier. If none of those relatives survive, the estate goes to the State.
Does a de facto partner inherit if there is no will?
Yes, if the couple had lived together as a couple on a genuine domestic basis for a continuous period of at least two years ending on the death. Whether that test is met is a question of fact and is sometimes contested, so it is worth getting advice rather than assuming either way.
Do stepchildren inherit if there is no will?
Not under the intestacy formula, unless they were legally adopted. A stepchild may still be able to bring a family provision claim, and strict time limits apply.
Can a separated spouse inherit if there is no will?
Yes. Until there is a divorce, a separated husband or wife is still a spouse under the Succession Act. If the deceased also had a qualifying de facto partner, the two may have to share the spouse’s entitlement.
How long does it take to administer an estate without a will?
There is no fixed timeframe. The notice requirements mean an application for letters of administration cannot be filed until at least 15 days after the notice is published, and the court then has to process the application. Administrators also commonly wait until at least six months after the death before distributing, because of the family provision time limits. A disputed estate takes considerably longer.
Can a handwritten note or a text message count as a will?
Sometimes. The Supreme Court can accept an informal document as a will if it is satisfied the person intended it to operate as their will. A court application is needed, and if it succeeds the document decides who inherits instead of the intestacy rules.
What if the family agrees on a different division?
Beneficiaries who are all adults with legal capacity can usually agree to vary their entitlements, normally by a formal written deed. The administrator cannot simply distribute differently because it seems fairer. The variation needs to be documented properly and can have tax and duty consequences, so get advice first. If any beneficiary is under 18 or lacks capacity, a different approach is needed.
Do I need letters of administration for a small estate?
Not always. Some banks and other institutions will release smaller amounts without a grant under their own policies, although they are not required to. If everything was held jointly or is paid directly to nominated beneficiaries, there may be nothing that needs a grant. Where the deceased owned real estate in their own name or as a tenant in common, or left significant funds, a grant will usually be needed.
Can I contest an estate when there is no will?
Yes, if you are an eligible person. A spouse, child, stepchild or dependant who has not been adequately provided for under the intestacy rules may be able to apply for a family provision order. The time limits run from the date of death, so act promptly. Our will disputes page explains how these claims work.
Talk to an estate lawyer in Brisbane or on the Gold Coast
If someone close to you has died without a will, you probably have immediate practical questions about who can deal with the bank, who should apply to the court and what will happen to the house.
ROC Legal acts for families in exactly this position. We apply for letters of administration, resolve disagreements about who should administer an estate, advise administrators on their duties and their exposure, and act in family provision claims where the statutory formula has produced an unfair result.
We act in estate matters in Brisbane, on the Gold Coast and across Queensland. Your first consultation is free and confidential, with no obligation to proceed. Call ROC Legal on 1300 196 219 or request a consultation to discuss your situation.
This page is general information about Queensland law as at October 2026. It is not legal advice about your circumstances.