What happens if I die without a will?

Why having a Will is important?

You may be surprised to learn that almost half of Australians die without a valid will. When you die without a will you are said to have died “intestate”. What happens to your estate if you die without one will vary between each state and territory. However, in Queensland, if you die without a valid will the intestacy laws of Queensland will determine how your estate is to be distributed.

Part 3 of the Succession Act 1981 (Qld) deals with how a deceased person’s estate is to be distributed when there is no will or a will cannot be located.

Single and no children

If, at the time of your death you are single and have no children, your parents will stand to inherit your entire estate. If your parents are not alive at the time of your death your siblings will inherit your estate, and if there is more than one, in equal shares. If any of your siblings have predeceased you and have children, the share that would have gone to them is passed to their children.

If there are no children, no siblings and no nieces or nephews, your estate will be divided between the surviving relatives of your mother and the surviving relatives of your father.

If there are no surviving relatives, the Crown (the Queensland Government) will stand to inherit your estate.

Single with children

If, at the time of your death you have children, your estate will be distributed amongst your children equally. If any of your children predecease you (die before you) and they have children, then the share they would have inherited will pass to them (your grandchildren).

Married/ De facto spouse with no children

If you are married or in a registered civil partnership, but have no children, your spouse or partner will receive the residue of the estate. This means that after the deceased’s debts and any administration expenses are paid, the spouse will receive the remaining estate.

Married/ De facto spouse with children

If at the time of your death you are married or in a registered civil partnership, and you have children, and the children are children of the spouse or partner, the spouse or partner would receive the first $150,000 and all the household chattels. The spouse would then take either one half or one third of the remainder of the estate, depending on the number of children.

There is no will, what happens next?

When drafting a will, the testator would normally appoint an Executor who would be responsible for administering the Estate in accordance with the deceased’s wishes. When there is no will or a will cannot be located, someone will need to apply for what is called Letters of Administration to be able to finalise your affairs. This can be any person who has an interest in your Estate; ie a beneficiary or a creditor.

An administrator cannot deal with a deceased estate unless they have been granted a Grant of Probate (when there is a will) or a Grant of Letters of Administration (when there is no will) by the Supreme Court of Queensland. For an asset to be released to an Administrator, most institutions will require that Letters of Administration be produced.

If there is no will or one cannot be found, then before you can make an application to the Supreme Court you must actively search for the will. If after your searches, one cannot be located then you can proceed with making an application to the Court. The following documents are required when applying:

  • An affidavit stating your relationship with the deceased, your eligibility to apply and your priority in relation to other people who may apply;
  • An affidavit confirming the advertisement and searches you have conducted in order to locate the will of the deceased;
  • Application for Letters of Administration; and
  • The required filing fee.

When the Supreme Court is deciding an application for Letters of Administration, the court must be satisfied that the person applying is the most appropriate. The Uniform Civil Procedure Rules 1999 Chapter 15 outlines the order of priority for persons who can apply for Letters of Administration. They are:

  • surviving spouse;
  • child or children;
  • grandchildren or great-grandchildren;
  • parents;
  • brothers or sisters;
  • nieces or nephews;
  • grandparents;
  • uncles and aunts;
  • first cousins; and
  • anyone else the Court may appoint.

If there are no surviving relatives that can be located, your estate will almost certainly pass to the state or territory government under that state or territory’s succession law. If you want to ensure that your estate is distributed in a particular way, it is important that you have a Will drafted.

If you do not have a current will then contact the friendly team at Miller Sockhill Lawyers on 07 5444 4750 and book an appointment today.