What Happens If You Die Without a Will in Queensland

This is the first in our series of articles on the uncertainties of death and busting some common Estate Planning myths.

The Uncertainties of Death Series

Myth: “If I pass away without a Will, everything just goes to my spouse… right?”

Wrong!

If you die without a valid Will, you die “intestate”.

This means that your estate is distributed according to the Queensland laws of intestacy rather than according to your own wishes.

The Succession Act 1981 (Qld) sets out the rules that determine who can inherit and how an intestate estate is distributed.

Does everything go to your spouse if you die without a Will?

Not necessarily.

Many people assume that their spouse will automatically receive their entire estate if they die without a Will. That is not always the case.

The outcome depends on your family circumstances and the relatives who survive you. Depending on those circumstances, people who may benefit can include your spouse or de facto partner, children, parents and more remote relatives.

The Queensland Public Trustee explains the laws of intestacy and the statutory order used to distribute an estate when someone dies without a valid Will.

These Rules essentially provide an inflexible “formula” for the distribution of your estate.

That formula might not be appropriate for your family. It might also produce a result that is very different from what you intended.

What does intestate mean in Queensland?

“Intestate” means that a person has died without a valid Will.

When someone dies intestate, they cannot choose who receives their estate through a Will. Instead, Queensland law determines who can inherit and what share they receive.

The estate must then be administered under the Queensland intestacy rules. If there is no Will, the estate is generally administered by an administrator rather than an executor.

The Queensland Public Trustee confirms that an administrator is responsible for administering an estate where there is no Will and following the applicable intestacy laws.

This can create uncertainty for families, particularly where the family structure is more complicated than the standard assumptions behind the intestacy rules.

Who can inherit if you die without a Will in Queensland?

Depending on your family situation, the range of beneficiaries can include:

your spouse or de facto partner;
your children and, in some circumstances, grandchildren;
your parents;
your brothers and sisters;
your nephews and nieces; and
other more remote relatives within the limits of the intestacy rules.

The exact distribution depends on which relatives survive you and the circumstances of your family.

Queensland’s intestacy rules establish an order of relatives who may inherit. The rules can extend from a spouse, de facto partner and children through to more remote relatives, depending on the circumstances.

A beneficiary generally must survive the deceased person by at least 30 days to be entitled to share in the estate.

What happens to stepchildren if you die without a Will?

This can be particularly important for people with a blended family.

People are often surprised to learn who does and who does not benefit under the Rules of Intestacy.

For example, stepchildren are not automatic beneficiaries under Queensland’s intestacy distribution rules.

The Queensland Public Trustee confirms that stepchildren are not considered next of kin for the purpose of distributing a deceased estate under the intestacy rules.

This does not necessarily mean that a stepchild can never make a claim against an estate. Queensland law provides circumstances in which an eligible stepchild may be able to make a family provision application.

If you want to provide for a stepchild, it is therefore important to consider your wishes when preparing your Will rather than relying on the intestacy rules.

Why can dying without a Will cause problems for a blended family?

Blended families can include children from previous relationships, stepchildren, de facto partners and other family relationships that may not fit neatly within your intended estate plan.

The statutory formula that applies when you die intestate might not reflect the relationships that matter most to you.

For example, you may want to provide for a stepchild even though the intestacy rules do not automatically provide for them.

You may also want to divide your estate between your current spouse, children from a previous relationship and other family members in specific proportions.

Without a Will, you do not have the same ability to document those wishes.

Why should you make a Will?

A Will allows you to document how you want your estate distributed after your death.

Rather than leaving your family to rely on the statutory intestacy formula, you can set out who you want to benefit and the proportions in which you want them to benefit.

A Will can also deal with other important estate-planning matters, including appointing an executor and making specific gifts.

The Queensland Public Trustee explains how a Will can set out your wishes and identify your beneficiaries.

What happens if you have no Will?

If you die without a valid Will, your family cannot simply distribute your estate according to what they believe you would have wanted.

Instead, the administrator must follow the applicable laws of intestacy.

This can mean:

your estate may go to people you did not intend to benefit;
people you wanted to benefit may receive nothing under the intestacy rules;
your assets may be divided in proportions you would not have chosen; or
family relationships may become more complicated during the administration of your estate.

The rules can also become more complicated where there are multiple spouses, children, grandchildren or other relatives.

Does a de facto partner inherit if you die without a Will?

A qualifying de facto partner can have rights under Queensland’s intestacy laws.

Queensland legislation recognises certain de facto relationships for the purposes of determining who qualifies as a spouse. For intestacy purposes, the legislation generally requires the de facto relationship to have existed continuously for at least two years ending on the deceased person’s death.

This is another reason why you should not assume that the phrase “my spouse” tells you exactly what will happen to your estate if you die without a Will.

What should you consider when making a Will?

When preparing your Will and Estate Plan, consider:

who you want to benefit from your estate;
what proportion of your estate each beneficiary should receive;
what should happen if a beneficiary dies before you;
whether you have a blended family;
whether you have stepchildren you want to provide for;
who you want to appoint as your executor; and
whether your Will still reflects your wishes as your circumstances change.

These decisions can help reduce uncertainty and make your intentions clearer to your family.

Review your Will and Estate Plan

The simple step of properly preparing your Will and Estate Plan can help ensure that the people you want to benefit receive your estate in the proportions you intend.

It can also help you avoid relying on the statutory intestacy formula, which may not reflect your family’s circumstances or your wishes.

It is particularly important to review your Will after major life changes, such as marriage, separation, divorce, the birth of a child or changes to your family relationships.

If you do not have a valid Will, or your existing Will no longer reflects your wishes, obtaining legal advice can help you understand your options.

Frequently asked questions about dying without a Will in Queensland

What happens if I die without a Will in Queensland?

If you die without a valid Will, you die intestate. Your estate is then distributed according to Queensland’s laws of intestacy rather than according to your own wishes. The outcome depends on your family circumstances and the relatives who survive you.

Does my spouse get everything if I die without a Will?

Not necessarily. The intestacy rules determine how your estate is distributed based on your family circumstances. A spouse may receive all or part of an estate, depending on the relatives who survive the deceased and the applicable rules.

What does intestate mean?

Intestate means that a person has died without a valid Will. In that situation, Queensland’s intestacy laws determine who can inherit the estate and how it is distributed.

Do stepchildren inherit if there is no Will in Queensland?

Generally, stepchildren are not automatic beneficiaries under Queensland’s intestacy distribution rules. If you want to provide for a stepchild, you should consider making a Will that clearly reflects your wishes. Depending on the circumstances, a stepchild may also have rights to make a family provision application.

Can a de facto partner inherit if there is no Will?

Yes. A qualifying de facto partner can have rights under Queensland’s intestacy laws. The precise requirements depend on the circumstances of the relationship.

Why is a Will important for a blended family?

A Will allows you to document who you want to benefit from your estate and how you want your estate distributed. This can be particularly important for blended families where you may want to provide for a spouse, biological children, stepchildren or other family members in specific ways.

Does your Will reflect your wishes?

People are often surprised to learn who does and who does not benefit when someone dies without a Will.

The Rules of Intestacy provide a statutory formula for distributing an estate. That formula may not produce the outcome you would have chosen, particularly if you have a blended family or want to provide for people outside the usual categories of beneficiaries.

The simple step of properly preparing your Will and Estate Plan can help ensure the people you want to benefit receive your estate in the proportions you intend.

Contact us to discuss your Will and Estate Planning needs.

The Uncertainties of Death Part 1: What Happens Without a Will?