What “dying without a will” actually means
When a person dies without a valid will, they die intestate. Their estate does not simply pass to whoever seems closest. Instead, someone (usually a family member) must apply to the Supreme Court to be appointed administrator, the debts and tax are paid, and what remains is distributed under a set of rules in Part 3 and Schedule 2 of the Succession Act 1981 (Qld). Those rules are the same for everyone. They take no account of what you intended, what you promised, or what your family actually needs.
A partial intestacy is also possible. If you leave a will that disposes of only some of your assets, or a gift fails, the part that is left over is distributed under the same intestacy formula.
Who inherits if you die without a will in Queensland
The outcome depends on who survives you. The most common situations work out like this.
A spouse and no children. Your spouse is entitled to the whole of the estate.
A spouse and children. This is the result that surprises people. Your spouse does not take everything. Your spouse receives the household chattels, the first $150,000, and then a share of what is left: one half if you leave one child, or one third if you leave more than one child. Your children share the balance equally. A long-married couple with a modest home and two children can find the surviving partner sharing the house with the children, sometimes adult children from an earlier relationship.
Children and no spouse. Your children take the whole estate in equal shares. If a child has died before you leaving children of their own, that branch takes the deceased child’s share.
No spouse and no children. The estate passes to the first of the following who survive you: your parents; then your brothers and sisters (and the children of any who have died); then grandparents; then aunts and uncles (and their children). If none of these relatives survive you, the estate is treated as bona vacantia and passes to the State of Queensland.
“A surviving husband, wife or partner does not automatically inherit everything. Where there are also children, the estate is split by a fixed formula, whatever the family actually needs.” |
One further rule catches people out: to inherit on an intestacy a person must survive you by at least 30 days. Someone who dies in the same accident, or shortly afterwards, is treated as having died before you.
If you are not married: the de facto question
Unmarried partners are where intestacy does the most damage. A de facto partner is treated as a spouse on an intestacy only if, at the date of death, you had lived together as a couple on a genuine domestic basis for a continuous period of at least two years, or in certain cases where there is a child of the relationship. A partner of eighteen months, with no children, can receive nothing at all under the formula and be left to bring a court claim against the estate to be provided for.
It is also possible to have more than one person who qualifies as a spouse at once, for example a separated husband or wife you never divorced and a current de facto partner. The Succession Act 1981 (Qld) then divides the spouse’s entitlement between them, by agreement or by court order. A will avoids all of this by saying plainly who you intend to provide for.
What a will does that intestacy cannot
Intestacy is a default, not a plan. A will lets you do the things the formula cannot.
You choose your own executor, the person who administers your estate, rather than leaving your family to sort out who applies to the court. You can appoint a guardian for children under 18, so that you, and not a later dispute, decide who raises them. You can make specific gifts, provide for people the formula ignores entirely (a stepchild, a partner under the two-year threshold, a friend, a charity), and deal sensibly with a business or with property you own with others. You can also direct how your superannuation is handled, which often sits outside your estate and is paid at the fund trustee’s discretion unless you have made a valid binding death benefit nomination.
What makes a will valid in Queensland
A will is not valid simply because it is written down and signed. Under section 10 of the Succession Act 1981 (Qld) it must be in writing and signed by you (or by someone else, in your presence and at your direction), and your signature must be made or acknowledged in front of two or more witnesses who are present at the same time, at least two of whom then sign in your presence.
This is where home-made and will-kit documents come undone. A common mistake is having a beneficiary, or a beneficiary’s husband or wife, act as a witness. Another is signing without both witnesses in the room together. A document that does not meet the requirements is not automatically worthless: the court has power to recognise an informal will, but that means an application, legal costs and delay, and no guarantee of the outcome, at exactly the time your family can least manage it.
Marriage, divorce and a new child change your will
A will is not set and forget. Marriage revokes a will you made beforehand, unless the will was made in contemplation of that marriage. Divorce does not revoke the whole will, but it cancels any gift to, and any appointment of, your former spouse, and the will then operates as if that person had died before you. A new child, a separation, the death of a beneficiary or a significant change in your assets are all reasons to review what you have. The cheapest estate planning mistake to fix is the one you catch while you are alive.
What this means for you
If you have a partner and children, do not assume your partner is protected
The intestacy formula splits your estate between your partner and your children. If your intention is for your partner to be secure in the home, or for children of an earlier relationship to be treated in a particular way, only a will achieves that.
If you are in a de facto relationship, the threshold matters
Until your relationship clearly meets the legal test, your partner may take nothing under the formula. A will removes the doubt and the need for a court claim.
If you have young children, your will is where you name their guardian
Without a will, there is no document recording who you wanted to raise your children, and the question can be left to a dispute or to the court.
A will reduces disputes; it does not rule them out
A spouse, child or dependant who is not adequately provided for can apply to the court for further provision, and must generally do so within nine months of the death. A properly drawn will, with the reasons for your decisions recorded, is the best protection against that kind of claim. Intestacy offers none.
Wills and estate planning A clear, valid will is one of the least expensive and most useful things you can put in place for the people you leave behind. Our wills and estate planning team can prepare one that reflects what you actually intend. |
This article is general information only and not legal advice. The rules summarised here come from the Succession Act 1981 (Qld) and can apply differently to your circumstances. Contact Fraser Lawyers for advice specific to your situation.
If you would like to discuss your matter, you can book a consultation or call (07) 5554 6116.
