Having a love one pass away is an emotionally traumatic and stressful event. The stress can be made worse when there is no valid will in place. Having no valid will can cause extended time delays in distributing the estate as the rules for dealing with an estate with no will have strict rules to follow. Therefore, it is important to understand the rules surrounding intestacy and dying with no valid will in place.
When does intestacy rules apply?
Intestacy applies to a deceased estate with no valid will. This means that intestacy laws does not apply only to people those who did not draft a will at the time of their death. Intestacy rules may also apply to:
- unintentional revocation of a will (e.g. divorce or separation from a partner);
- loss of original copy of will and no copies can be located;
- a will signed by someone who lacked testamentary capacity; or
- a will not executed properly.
Even if the deceased did draft a will, the surrounding circumstances around it may make the will invalid. If there are no previous will to fall back on then intestacy rules may apply.
Some circumstances people do not consider is if they die with their spouse. If spouses die at the same time, (e.g. a car accident) whomever is older will be considered to have died first. This may mean the other spouse inherited the estate and if the other spouse did not have a will at the date of their death the assets will be distributed as part of the second’s spouse estate. Accordingly, this may omit family members of the older spouse.
Who may apply to handle an intestacy estate?
The Uniform Civil Procedure Rules 1999 (Qld) dictates who may apply to deal with the estate of a person who has no valid will. Rule 610 provides a list of priority as to whom may apply to act as the administrator, which includes (in order of the highest priority to lowest priority):
- deceased’s surviving spouse;
- deceased’s child or children;
- deceased’s grandchild or grandchildren;
- deceased’s parent or parents;
- deceased’s siblings;
- children of the deceased’s siblings;
- deceased’s grandparent or grandparents;
- deceased’s uncles and aunts;
- deceased’s first cousins; and
- anyone else who the court may appoint.
Once the court appoints an administrator, that person must distribute the estate in accordance with Part 3 Division 2 of the Succession Act 1981 (Qld) which is listed below.
The administrator has no discretion as to how to distribute the money. As there will be no written instructions by the deceased on how to distribute the estate, the administrator must distribute the estate strictly in accordance with the following situations as listed under the Succession Act 1981 (Qld):
- a spouse but no children – the spouse receives the whole of the residual estate;
- a spouse and one child – the spouse will receive $150,000, the household chattels and one half of the deceased’s residual estate. The child will receive the remaining half of the residuary estate;
- a spouse and two or more children – the spouse will receive $150,000, the household chattels and one third of the deceased’s residual estate. The child will receive the remaining two thirds of the residual estate in equal shares;
- children but no spouse – the residual estate will be distributed equally between the children and if one of the children has already died but leaves children of their own, then the grandchildren will take their parent’s share;
- no children or spouse – the residual estate will go to other family members (in the following order) parents, siblings, nieces and nephews, grandparents, uncles and aunts and first cousins;
- no surviving family members – as a last resort, the residual estate will go to the Crown (the state government).
These rules have strict application and there is no discretion to distribute it differently even if the family dynamics are complicated. For example, a married couple that is separated but not yet divorced might mean that if one of the spouses die, the other one will receive an entitlement from the estate even though the couple had separated.
De Facto Partners & Adopted / Illegitimate Children
The terms spouses and children may confuse some as to whether they can be entitled to any benefit of an estate. The term spouse is commonly associated with married couples (not unmarried couples) and children at face value may provide questions for adopted or illegitimate children. The good news is that the laws have considered this and determined whether these people can be included to claim a benefit on the deceased’s estate.
The term “spouse” includes de factor partners. However, to be entitled to a share of the deceased’s estate, the deceased and de facto partner must have been in a relationship continuously for at least 2 years as at the date of the deceased’s death.
Children is not limited to biological children, adopted children and illegitimate children (children born out of marriage) are included in the term “children”, however:
- adopted children can only receive an interest in the estate of their adopted parents, as once adopted they are no longer be considered a child of the natural parents. Furthermore, the adoption must have taken place in Queensland after 1936 and the deceased parent must have died after 31 July 1965;
- children born out of marriage may have difficulty in claiming an interest in their father’s estate. In order to claim an interest the father must have admitted paternity, paternity was established during the father’s lifetime or a declaration of paternity was made by the Supreme Court after death. If a father of an illegitimate child wishes to register their interest in the deceased child’s estate, paternity must have been established while the child was alive.
Nobody wants to think about death, however it is essential that you have a valid will at the time of your death. Not having a valid will means your estate will be dealt with as per intestacy rules and these rules most likely will not reflect your wishes to provide for all of your loved ones (especially those dependant on you) after your death.
If you have any questions or require assistance with drafting or updating your will in Queensland, then please contact the property team at My Property Protect for more information.
Kayleigh Swift, Associate
Chloe Skubis, Graduate Law Clerk
About the authors
Kayleigh Swift is an associate in our Commercial and Property team who assists with Employment Law matters. With a high level of experience in commercial and retail leasing, voluntary and involuntary purchase and sale acquisitions, property development and employee relations, Kayleigh provides practical advice to ensure smooth business transactions.
Chloe Skubis is a Graduate Law Clerk in our Property team who assists with various conveyancing transactions. Chloe is very experienced in residential conveyancing and is a problem solver. She always provides efficient service to all her clients.
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