5 Things You Need To Know
Losing a loved one is a challenging and emotional experience. And when someone passes away without leaving a valid will, legal issues can arise that add to the stress and confusion.
If someone passes away without a will, they are said to have died “intestate”. In these circumstances, the deceased’s wishes and preferences do not determine the asset distribution. Instead, the Queensland intestacy laws come into play.
CLO Director and Wills & Estates Lawyer Alan Cumming provides a brief overview of five essential things you need to know when someone dies without a will in Queensland:
1. What Happens To The Assets When Someone Dies Without A Will?
In Queensland, when a person dies intestate, the distribution of the deceased person’s assets is governed by the Succession Act 1981 (the Act), which sets out intestacy rules.
These rules contain a hierarchy for distributing the estate, prioritising surviving family members of the deceased.
The hierarchy starts with the next of kin, including spouse or de facto partner and issue. The term’ issue’ means children and grandchildren (where parents are deceased) and includes children born to unmarried parents.
If there is no spouse/de facto partner or issue, the estate will go to parents, siblings, nephews, and nieces. In the absence of those parties, the estate will go to grandparents, then to uncles and aunts, and cousins.
In-laws or stepparents are not next of kin under the intestacy laws.
Where a person dies intestate and has no surviving relatives, the deceased’s property passes to the Crown (government).
2. What Is My Entitlement If My Spouse Or Partner Dies Without A Will?
If the deceased person had a spouse or de facto partner, they would generally become the primary beneficiary. Depending on the circumstances, the spouse or de facto partner may be entitled to the entire estate or a share of it. The distribution will vary if there are children from the current or previous relationships of the deceased.
The term de facto partner refers to a person living with the deceased on a genuine domestic basis but not married or related by family, where the relationship existed for a continuous period of at least two years ending on the deceased’s death. The gender of a de facto partner is no longer relevant, and the term covers same-sex couples.
3. Will The Children Receive An Inheritance When A Parent Dies Without A Will?
In the absence of a surviving spouse or de facto partner, the deceased person’s children become the primary beneficiaries.
The estate is typically divided equally among the children, including biological and adopted children. Biological children include illegitimate children born out of wedlock where there is recognised proof of paternity.
Stepchildren are not considered as a child of the deceased for intestacy purposes. However, stepchildren may be able to make a Family Provision Claim.
4. What Is The Role Of An Administrator And Who Can Act As Administrator?
The person who finalises the estate of someone who dies intestate is called an administrator. Administrators are appointed by the Supreme Court. The appointment of an administrator by the Court is called “Letters of Administration”.
Only certain people can apply to the Court for a grant of letters of administration on intestacy, and there is an order of priority for applicants. The administrator is usually a family member or professional executor such as the Public Trustee.
The administrator’s responsibilities include identifying and collecting the deceased person’s assets, paying off debts and taxes, and distributing the remaining estate to the rightful beneficiaries according to intestacy rules.
The process of obtaining a grant of letters of administration on intestacy can be complex. The Wills and Estates lawyers at CLO Lawyers are highly skilled and experienced. They will explain your options in plain English and provide guidance and assistance. Contact CLO Lawyers to arrange a confidential consultation.
5. Potential Challenges And Disputes
Intestate succession can sometimes lead to challenges and disputes among family members regarding the distribution of assets.
To mitigate potential conflicts, we strongly recommended that family members consult with an experienced Wills and Estates lawyer soon after the deceased’s passing. Our team of Wills and Estates lawyers can provide guidance and ensure that settlement of the estate progresses smoothly.
Dying Without A Will Create Stress And Uncertainty For Your Loved Ones
Dying without a will can result in unnecessary stress and uncertainty during an already difficult time. Creating a valid will ensures that your assets are distributed according to your wishes. By appointing an executor and nominating the beneficiaries of your estate, you provide clarity and help prevent potential disputes among loved ones.
When someone dies without a valid will, the administration of their estate can be complex and expensive for their loved ones. We recommend that an experienced Wills and Estates lawyer be engaged to assist and guide the deceased’s family members through the estate administration process.
The Wills and Estates team at CLO Lawyers will treat you with care and sensitivity and ensure that your questions are answered, and options explained.