Updated: Oct 13
Losing a loved one is often a deeply emotional and challenging experience. When a person passes away without a valid Will, it may also create legal complications that only add to the stress and confusion.
When a person dies without a Will, they are considered to have died intestate.
This means that the deceased's wishes do not determine how their assets are distributed. Instead, Queensland's intestacy laws govern the distribution of assets.
There are several reasons why a person might not create a Will during their lifetime. However, this decision can create significant legal and emotional challenges for estate managers and loved ones. Therefore, we strongly encourage all adults to make a Will to clearly outline their wishes before it's too late.
In This Article:
Intestacy Laws In Queensland
In Queensland, when a person dies intestate, the Succession Act 1981 (the Act) governs the distribution of the deceased person's assets.
More specifically, Part 3 of the Act sets out the intestacy rules that govern how an estate is distributed to specific family members in a particular hierarchy.
This hierarchy starts with the spouse or de facto partner and issue. Issue simply refers to any children and grandchildren (including any step, adopted or foster).
Where there is no spouse or issue, the estate is distributed to family members (next of kin) in the following order:
parents;
brothers and sisters;
nephews and nieces;
grandparents, then
uncles, aunts and cousins*
*There is no provision to distribute an estate to relatives more remote than first cousins.
In-laws are not classified as next of kin, and are not considered in these intestacy laws.
Glossary Of Key Terms
We understand some of these terms may be unfamiliar, but it's important to understand what they mean when discussing estate law.
Beneficiary: a beneficiary is any person or organisation (e.g. a charity) that receives a gift or benefit from a person’s estate.
Child: in addition to natural/biological children, this includes any stepchild, adopted child or foster child.
De facto: the partner of a deceased person living together with them on a genuine domestic basis for a continuous period of at least 2 years up to the deceased's death.
Dependant: a spouse and/or child of the deceased, and anyone else wholly or substantially supported by the deceased at the time of their death.
Estate: all of a person's property (assets) and liabilities (debts) after death.
Intestacy: when a deceased dies without a Will, the administrator must distribute assets to specific relatives in specific proportions under the rules of intestacy.
Issue: any children and grandchildren (including any step, adopted or foster)
Next of Kin: relatives to which an intestate estate is distributed.
Residuary Estate: the residue of the estate after all specific legacies (such as legal and funeral costs) have been paid.
Spouse: includes a husband, wife, de facto partner, and former husband or wife. This includes same-sex couples irrespective of gender.
Survival: anyone entitled to receive a benefit of the estate must survive the deceased by at least 30 days.
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What Happens To The Assets?
The answer to this question will ultimately depend on the deceased's personal relationships and assets. Where an individual dies intestate and has no surviving kin, the deceased’s assets will pass to the Crown (government).
Let's take a look at some common situations and what you may expect:
Remember that issue includes any children and grandchildren (including any step, adopted, or foster children).
If the deceased is survived by a spouse, and has no issue
If there is only 1 surviving spouse, the spouse is entitled to the whole of the residuary estate.
If the deceased is survived by a spouse and issue
If there is only 1 surviving spouse, the spouse is entitled to $150,000 and the household chattels, and the following part of the residuary estate:
where there is only 1 child who survived, or who did not survive but left issue who survived, then half (1/2)
otherwise one-third (1/3)
The deceased's issue are entitled to the balance of the residuary estate under section 36A of the Succession Act 1981. Whilst complex and covering a range of scenarios, this generally results in equal shares between any surviving issue.
For example, if you had a spouse and two children, each child would be entitled to a 1/2 share of the balance of the residuary estate (noting your spouse's entitlements above).
If there is more than 1 surviving spouse, they will usually share equally, unless there is an existing agreement between the spouses. We strongly suggest that an individual with multiple partners or spouses put together a comprehensive estate strategy by preparing a Will.
Where the deceased is not survived by any spouse, but is survived by issue
The issue are entitled to the whole of the residuary estate in accordance with section 36A (generally in equal shares).
Where the deceased is not survived by issue but is survived by a parent or both parents
If there is one surviving parent, that parent is entitled to the whole residuary estate.
Where both parents survive the deceased, the residuary estate is divided equally.
Where the deceased is not survived by issue or by a parent but is survived by next of kin
The next of kin are entitled to the residuary estate in accordance with section 37 (generally in equal shares).
Note that the Succession Act 1981 has a specific hierarchy in dealing with next to kin:
brothers and sisters (and their children); then
grandparents in equal shares; then
uncles and aunts (and their children).
The law makes no provision to distribute an estate to relatives more remote than first cousins.
Where the intestate is not survived by issue, by a parent or by next of kin
The estate is deemed bona vacantia, and the Crown is entitled to it.
Are There Any Disadvantages To The Intestacy Process?
This legislated formula can sometimes be problematic, as the deceased's assets may be split between more than one surviving spouse or go to a relative who had little contact with the deceased. This can cause significant emotional and financial stress for all involved.
Dying without a Will often creates uncertainty for your loved ones and increases the risk of a dispute.
Whilst it may be tempting to think that 'well it will all go to my family anyway' is enough, you may have specific wishes that intestacy laws won't cover.
How Can I Make Sure Specific People Get My Assets?
This is simple. Get a Will.
A Will is an important legal document outlining a person's wishes for when they pass away, and will include who will be their executor (who is responsible for carrying out the directions you make), beneficiaries (someone who will receive a benefit from your estate), specific gifts, funeral arrangements and requests, and legal guardians for underage children.
Without a Will, your assets will be distributed under the Succession Act 1981, as we've outlined above.
At RHC Solicitors, our simple Wills start from as little as $175 and can give you peace of mind that your wishes will be carried out after your death.
Book Your Appointment to Get a Will
Our lawyers work closely with you to protect your hard-earned assets and ensure your intended beneficiaries are protected.
How Can I Stop Someone Contesting My Will?
In some circumstances, intestacy laws and succession can lead to disputes among family and loved ones over how assets are distributed. This is more common in complex family situations and blended families.
While you cannot take away an individual's statutory right to make an inheritance claim, you can put strategies in place during your life and after to reduce the risk of an estate dispute.
The simplest is to ensure adequate provision for anyone with a valid claim against the estate. In Queensland, this includes the deceased's spouse or de facto partner, child or stepchild, and any dependent the deceased substantially maintained (financially or otherwise) before their death.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current, and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication are those of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
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