What happens when there is no Executor?

There’s no Will, so who deals with the Estate?
Or
There’s a Will, but no Executor – What happens next?

Where there’s no will, it means that there cannot be an executor – because an executor is the person appointed by the will to carry out the instructions contains in the will.   Where there’s no will, the scenario is called an “intestacy”, and the deceased person is said to have died “intestate” – that is, died without a will.

A somewhat common belief seems to be that, if you don’t have a will, then your estate goes to the government.  Thankfully, only in very limited circumstances that is the case.  Assuming the person was a Queensland resident, with Queensland assets, and died in Queensland, then their estate would be distributed according to the intestacy rules contained in the Succession Act 1981.  The best summary of how your estate will be distributed can be found Is in the below diagram:

INTESTACY CHART

But that only determines who gets what in the estate; it doesn’t say who facilitates the administration of the estate.

Instead, for an intestacy, the court rules contain a list of people who can ask to be appointed as administrator of the estate.  In effect, an administrator takes on the role and duties that an executor would otherwise take on pursuant to a will.  The descending order of priority of people who can seek to be appointed as administrator is as follows:

1. The deceased’s surviving spouse;
2. The deceased’s children;
3. The deceased’s grandchildren or great-grandchildren;
4. The deceased’s parent or parents;
5. The deceased’s siblings.

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It’s somewhat uncommon, but sometimes a person may die with a valid will, but without any surviving person appointed as executor.  This may be because:

• The person/s appointed as executors predeceased the will-maker; or
• There is a surviving executor, however they cannot (or do not) want to accept the role and act as executor.

On first thought, you may think that the list concerning intestacy above would apply – but this is not the case.  Rather, where there is a will but no executor, the court rules instead provide a different list, for the descending order of priority of people who can seek to be appointed to administer the estate.  Similar to an intestacy however, the person appointed is called an “administrator”, but they effectively have the same role and duties as an executor.

There are some complex rules concerning this scenario, beyond the scope of this article, so if you are facing this scenario and require assistance, please contact us to discuss and we can guide you through the scenario and how those rules apply to your circumstances.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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