If you do not have a valid will in place when you pass away, it means you have died “intestate”. The rules of intestacy, contained in the Succession Act 1981 (Qld), will apply to determine who inherits your assets.
Who will deal with my assets?
The person who finalises your estate if you die intestate is known as the “administrator”. Any family member or creditor can apply to the Supreme Court to be appointed as the administrator, but priority is given in a particular order: first to a spouse, and then to children, parents, siblings, nieces/nephews, grandparents, uncles/aunts, then cousins. Without a will to appoint someone you consider capable and trustworthy, your administrator could end up being a family member you would not have otherwise appointed.
Who will receive my assets?
Again, the law sets out a particular order of priority for who will inherit your estate if you did not have a will. The value of your estate and the number of children you have can alter some entitlements, but in general terms, the order is as follows:
- Spouse & children
If you are married or in a de-facto relationship but have no children, your spouse will receive your entire estate. If you do have children, your spouse will receive $150,000 from your estate as well as all household items, and everything else is then split according to a specific formula between your spouse and children. If your estate is worth less than $150,000, your children will not receive anything. ‘Children’ includes adopted children and children born out of marriage, but not step-children.
If you are still married to one person but in a de-facto relationship with another person, then the spouse’s entitlement is to be split between the two spouses by agreement or court order.
If you are survived by children but no spouse, then your estate goes to your children equally.
- Parents (in laws, step parents)
If you do not have a spouse or any children, then your estate will go to your surviving parent or both parents equally. ‘Parents’ means natural or adoptive parents only, and does not include in-laws or step-parents.
- Next of Kin
If you are not survived by a spouse, any children or your parents, then the following family members inherit your estate (and in this order):
- Brothers and sisters;
- Nephews and nieces;
- Uncles and aunts; then
- The Crown
If you are not survived by any of the above family members, then your estate is distributed to the Crown.
The Benefits of a Will
Having a will in place which validly records your wishes means that your estate will be administered by someone you trust, and distributed to your closest family and friends. Application of the intestacy rules could mean that your child receives nothing, or a cousin you never spoke to receives everything, or the Crown benefits from your life’s work rather than your favourite charity. This could compound the grief and cause conflict between your loved ones.
We can also give you advice specific to your assets and family structure so that you can rest assured your beneficiaries’ interests will be protected. For example, you may be able to protect your child’s inheritance from any future divorce proceedings by setting up a testamentary trust.
If you would like advice drafting or updating your Will, you can contact us by telephoning our office on (07) 3220 2929 or emailing us at firstname.lastname@example.org
About Con Plastiras
Con Plastiras is the Principal of Plastiras Lawyers. Con helps private clients protect their assets during their lifetime and after their death. Con is well known for his work in estate planning and has lectured in the Estate Planning subject in the Master of Laws course at QUT since 1999.