If you have not made a Will, or your Will is not valid when you pass away, you have died “INTESTATE”. In those circumstances, the law determines who should receive the benefit of your estate. This is set out in the Succession Act 1981 under the’ rules of intestacy’ for estates in Queensland.
Rules of Intestacy
As stated above, the Intestacy Rules exist to govern how your Estate will be distributed if you die without a valid Will. The Rules state the order of priority for your family as follows:-
- First in line to the residuary estate is your spouse/ de facto and issue (children, grandchildren);
- If there is no spouse or issue, then the residuary estate passes to your parents;
- If neither of your parents have survived you, then the residuary estate passes to any surviving brothers and sisters, or nephews and nieces in place of their parent*;
- If there are also no surviving siblings or nieces and nephews, then the residuary estate passes to your grandparents;
- If there are also no surviving grandparents, then the residuary estate passes to your uncles, aunts or first cousins in place of their parent*;
- If you are not survived by any living relatives**, then the Crown is entitled to your residuary estate.
*For a person to be entitled to receive a part of a residual estate under the rules of intestacy (and in any Queensland estate generally) they must survive the person by 30 days. If they do not, for an intestacy, the predeceased beneficiary under the Rules’ own Estate is not entitled to that share, rather it will either pass to their issue (as outlined above) or revert back to be shared by the remaining and surviving class of beneficiaries on intestacy.
**It is important to note that there is no provision for distribution of your Estate to relatives more remote than your first cousins. Your in-laws are not classified as next of kin and are not included in the rules for the distribution of your Estate. A step-parent is not next of kin and neither is a mother-in-law or a father-in-law.
Who will be my Executor if I die without a valid will?
Where there is no valid will naming an Executor, the person nominated to administer the Estate is known as an “Administrator”. This person will need to apply to the Supreme Court of Queensland for a grant of Letters of Administration on intestacy. The people that can apply are again listed in the Succession Act 1981 in order of priority as follows:
- surviving spouse (including a de facto partner);
- grandchildren or great grandchildren;
- brothers and sisters;
- children of brothers and sisters;
- uncles and aunts;
- first cousins;
- anyone else the court may appoint.
If a person wants to apply who is not the priority listed person, they would need to provide evidence and sufficient reasons why they should be appointed ahead of someone else. For example, where a child of the intestate wished to apply in place of the surviving spouse.
I have a Home-Made Will, will that do?
Most home made wills are technically legal. However, there is no substitute for the quality of a will properly drafted by a suitably qualified lawyer. To be legal, a will must have the following features :-
- A written document;
- Signed by the testator (will-maker) in the presence of two witnesses, who must also sign the will; and
- The signature of the testator must be made with the intention of executing the will.
There is always the risk that poor drafting by well meaning people will end up in confusion and the need for applications to the Court to give clarity and certainty to the document. Just because it is legal, does not mean it will operate in the way you intended!
- Does it make sense, having regard to the laws around wills and estates?
- Have all the assets been considered and included?
- Will your estate end up spending thousands in court to fix an innocent mistake?
Turner Freeman Lawyers – Wills & Estates specialists
To avoid the often unintended consequences and added expense to your estate to put your affairs in order, it is imperative to maintain a valid and properly drafted will. To discuss your estate planning needs or to arrange your appointment to make/ review you will, please do not hesitate to contact Turner Freeman Lawyers Wills and Estates Team on (07) 3025 9000.