What’s an Intestacy?

Who gets what, and who does what, when you die without a will?

One of the most common questions from new estate planning clients, almost invariably, is “what happens to my estate if I die without a will?” and it’s usually closely followed by, “does the government take my estate if I don’t have a will?”

Thankfully, under Queensland’s intestacy laws, it’s extremely unlikely that your estate would go to the government. That is because the intestacy provisions of the Succession Act 1981 set out what should happen to your estate if you don’t have a will – and it’s rather exhaustive as to the categories of relatives who will inherit your estate. The intestacy rules attempt to implement a social policy whereby your estate goes to your nearest relatives, and only if no relatives exist would your estate ever go to the government. Even amongst lawyers with decades of experience, it’s still extremely rare to hear of an intestate person’s estate not passing to relatives, and instead going to the government.

Naturally, the intestacy rules are an attempt to set out some general rules about who ought to inherit from a deceased person’s estate. It establishes categories who become beneficially entitled in the estate, which in part depends on the circumstances of the deceased person. As would be expected, this starts with the deceased person’s spouse, followed by children, grandchildren, great-grandchildren (and so on, down the hereditary tree). If none of those categories exist, then the net is cast even wider, starting up and then branching out from the hereditary tree, starting with parents, then siblings (and this may include their children), then grandparents, followed by uncles, aunts (again, this may their children – i.e. the cousins of the deceased person).

Whilst it can appear simple, the practical application of the intestacy rules is highly dependant upon the circumstances of the deceased person as existed at the date of death. There are all manner of potential complications, many of which may unfortunately lead to disputes or other issues that impair the due administration of the estate, and sadly that increased complexity often leads to emotional distress at a time of grief for the loss of a family member. To give some brief examples:

  • It may not always readily apparent who is a spouse of the deceased person, such as for de facto relationships.
  • There may be more than one spouse (e.g. a married spouse, and a de facto spouse).
  • The intestacy rules may not account for non-traditional family relationships, such as adopted children or step-children.

The above issues are just a brief outline of some of the reasons that it is important to have a will. There are a number of other rules affecting the administration of deceased estates (for example, the above information only addresses who will receive an inheritance on intestacy – but there are separate rules governing who should act on behalf of the estate to administer and distribute it).

So whilst the question of, “what happens if I die without a will” seems simple, the outcome to the situation is highly dependant upon your circumstances. At the end of the day, having a will and proper estate planning in place will serve to simplify matters for your family upon your death, and is the only effective way to ensure that your estate and entitlements go where you intend for them to go – as opposed to being left up to some rules drafted by politicians!