What happens if I die without a will?

What happens if I die without a will?

In 2018 an Australian research organisation conducted a survey that found more than half of Australian adults – almost 10 million people - don’t have a will. While Queensland was the state with best take up, the survey found only 50% of adults here have made a will. The survey did not address how many of the people who have wills may have wills that are incomplete or ineffective. Most of us are aware that we should have an appropriate will in place to deal with out estate after we die, but for a variety of reasons – most commonly that they simply haven’t got around to it yet – people are often reluctant to undertake this important process. It is important to understand what happens if someone dies without a will, and why it important that if you make a will, it is prepared correctly and effectively.

Intestacy

If someone dies without a will, they are called ‘intestate’.  A ‘full’ intestacy arises when someone has died without leaving a will at all and a ‘partial’ intestacy arises when someone dies with a will that doesn’t effectively dispose of the whole of their estate.

In Queensland, the act dealing with succession and the administration of deceased estates is called the Succession Act 1981 (Qld) (the Act).  Part 3 of the Act deals with distribution on intestacy.

Who will receive my estate if I die intestate?

The intestacy rules deal with the distribution of an estate depending on whether the deceased person was married (including in a de facto relationship or civil union) or not, and whether the person had children or not.

What if the intestate was single without children?

If the intestate died without a spouse (including a de facto spouse or civil partner) the Act includes a hierarchy of relatives that will inherit.  If there are parents still living, they will receive the entire estate (and if both parents are alive, they will receive the estate equally).  If there are no surviving parents, then any siblings will inherit the estate (and if more than one, equally) and if the deceased’s siblings have died before them, then their children will receive their parent’s share.

If there are no surviving parents, siblings or nieces or nephews, then the estate is divided between uncles and aunts, and then cousins, on both sides.

Ultimately if there are no relatives closer than cousins, the entire estate will be bona vacantia, which means it will be received by the Crown.

What if the intestate has a spouse and/or children?

If the intestate died with a spouse, but no children, the spouse will receive the entire estate.  If there is no spouse but children, the children will receive the estate equally.

If the intestate died with a spouse and children, then the spouse will receive the first $150,000.00 of the estate plus all of the household chattels.  The balance of the estate will be divided depending on the number of children – if there is only one child, the balance of the estate will be dived equally, and if there is more than one then the spouse will receive one third and the remaining two thirds will be divided equally between the children.

The Act also deals with more complex circumstances, such as where there are more than one person who could qualify as ‘spouses’ such as where someone is still legally married and also has a de facto partner.

It is also important to consider who will qualify as a spouse – legally married couples may be separated but not divorced, in which case the surviving spouse may be entitled under an intestacy, whereas a separated de facto spouse may not.

Why do I need a will?

As noted above, there is very little flexibility allowed for in the Act when someone dies without a will – what happens to your estate will be determined by your family circumstances, rather than by you.

By ensuring that you have a valid, clear and up to date will you can provide both certainty and protection to your family, and limit the risk of increased administrative costs after you die.

Ballantyne Law Group are experts in estate planning and can provide effective, plain English and fixed price assistance in both conventional and complex situations.

Please contact our team of Brisbane or Gold Coast Will and Estate Lawyers on 07 5606 7332 or complete the enquiry form here to discuss estate planning with us.

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