What happens to my estate if I die without a will?

What happens to my estate if I die without a will?

When you pass away without a will (valid will), you are deemed to have died intestate. This means that your estate will be administered and distributed according to legislation.

The benefit of having a will is that you can appoint an executor to administer your estate and dictate how you wish for your estate to be distributed.

Who becomes the administrator of my estate if I die with a Will?

If a person dies intestate, an eligible person must apply to the Court for Letters of Administration in the event that there are assets that require an administrator.

The person the Court grants Letters of Administration to, becomes the legal representative of the estate.

Following is a list of people who are eligible to apply to the Court to be an administrator of an estate in the event that a person has died without a will. The list appears in descending priority.

  1. The deceased’s spouse;
  2. The deceased’s children;
  3. The deceased’s grandchildren or great-grandchildren;
  4. Deceased’s parent or parents;
  5. Deceased’s brothers and sisters;
  6. The children of deceased brothers and sisters of the deceased;
  7. The deceased’s grandparent or grandparents;
  8. The deceased’s uncles and aunts;
  9. The deceased’s first cousins; then
  10. Anyone else the court may appoint.

When applying for Letters of Administration, each of the persons who have priority must be “cleared off the record”. For example if you are a child of the deceased the court must be satisfied that the deceased did not have a spouse at the time of their death.

 Who does my estate go to if I die without a Will?

The Succession Act 1981 (Qld) dictates that the estate will be distributed to the closest next of kin to the deceased, first being the spouse and children of the deceased.

  1. If the deceased was married, with children, then:
  2. If the deceased was married, with no children, then the whole estate will go to the spouse.
    1. if the estate is less than $150,000 (excluding household goods), then then whole estate will go to the spouse;
    2. if the estate is more than $150,000 (excluding household goods), then the spouse will receive all the household goods as well as an amount of $150,000, and:
      • if there is one child, ½ of the rest of the estate; and
      • if there are two or more children, 1/3 of the rest of the estate,
    3. the children will receive the balance of the estate equally.

If the deceased did not have a spouse or children, then the estate will be distributed to the following people (in the following order):

  1. parents;
  2. siblings;
  3. nephews and nieces;
  4. grandparents;
  5. uncles and aunts;
  6. first cousins; then
  7. the Crown.

If you are dealing with an intestate estate and have any questions, please do not hesitate to contact me today.

Written by Christopher O’Connor – Partner