If you die without a will, you are said to have died “intestate”.
In Queensland, your estate will be distributed in accordance with a set of rules contained in Part 3 of the Succession Act 1981. Without a valid will, the process of administering a deceased estate is more complicated and can be more costly and time-consuming.
A person must first be appointed as “administrator” before a deceased estate can be administered. The person must apply for and be granted “letters of administration” by the Supreme Court of Queensland. This process is similar to a “grant of probate” to an executor in the case where a person dies with a valid will.
There is a list of eligible people who may apply to the Supreme Court for the letters of administration, namely (in the order of priority):
- the surviving spouse (including a de facto partner)
- grandchildren or great grandchildren
- brothers and sisters
- children of brothers and sisters
- uncles and aunts
- first cousins
- anyone else the court may appoint.
The Court must be satisfied that the person can appropriately administer the estate.
The distribution of the estate is determined by a set formula. There are monetary limits on how much a spouse receives and the rules provide that children of the deceased also receive a portion of the estate.
While this may sound logical enough, there can be issues which arise as a result of this set formula. For example, this may leave a spouse or de facto with not enough funds or may result in children receiving a share of the estate in circumstances where the deceased would not otherwise want them to receive a share of the estate (i.e. an estranged child).
If there is no spouse or issue, then the estate passes to parents, brothers and sisters, nephews and nieces, then grandparents, then uncles, aunts and cousins.
If a person dies intestate, the rules around administration of the estate are complex and the distributions may go against the deceased persons wishes. By having a valid and binding Will, you can ensure that your estate is distributed in accordance with your wishes.
The above is general in nature and does not constitute legal advice.