Intestacy Rules

What happens on your death if you do not have a Will?

While Estate Planning can often be considered morbid, here at Streten Masons Lawyers, we consider that Estate Planning is an important task to complete during your lifetime. It is a way to ensure that your affairs are left in order so that your loved ones are taken care of even once you are gone.

Many people are not aware of the potential ramifications of dying without a Will. Where you die without a Will (valid or incomplete) you are said to die Intestate.

Where this occurs in Queensland there are strict legislative requirements regarding how your Estate must be distributed.

As such, even if you have discussed your wishes with your family members, they may be unable to comply with your wishes without a valid Will. Further, your Estate Administration may be more complex.

Under the intestacy rules set out in the Succession Act 1981 (Qld) there is a hierarchy of beneficiaries upon your death intestate. These can be summarised as follows:

1. Where the deceased has a spouse, but no children, the spouse is entitled to 100% of the Estate;
2. If the deceased has a spouse and one child, then the spouse is entitled to $150,000.00, all household chattels and ½ of the residual Estate and the child is entitled to the remaining half of the residual Estate;
3. If the deceased has a spouse and more than one child, then the spouse is entitled to $150,000.00, all household chattels and 1/3 of the residual Estate. The remaining 2/3 is to be equally divided amongst the deceased children;
4. If the deceased has no spouse, but has children, the children are equally entitled to the Estate;

From here on the Estate can be distributed as follows:

5. Parents;
6. Brothers and sisters, nieces and nephews;
7. Grandparents;
8. Uncles, Aunts and Cousins; and
9. Bona vacantia; the crown is entitled to the Estate.

A persons ‘Spouse’ is legally defined, for the purposes of the Succession Act to be a person’s husband or wife, de-facto partner, or registered partner.

A de-facto partner refers to people living together as a couple on a genuine domestic basis, but are not married. There are a wide range of factors that contribute being classified as a de-facto. In addition, for the purposes of the Succession Act, the couple must be living together for a period of at least two years at the deceased death.

This definition can be problematic; particularly if you are separated from your spouse but legally married they may be entitled to a significant portion of the Estate.

This distribution on intestacy is often not in accordance with a deceased desires and does not provide any way for an Executor to distribute valued or sentimental possessions in accordance with their wishes.

It is important to consider your Estate Planning requirements for your own peace of mind and to allow your family to comply with your wishes upon your death.

If you don’t have a Will or need to update your Will, contact Streten Masons Lawyers on 07 3667 8966 or 5428 1111 to arrange an appointment to discuss your Estate planning needs.

Charlotte Streten – Solicitor