Intestacy is the law that governs what happens to property when someone dies without a will. Intestacy also covers a situation where a valid will does not cover all the property left behind. In that situation, the deceased person is said to have died partially intestate. Intestacy in Queensland is governed by Part 3 of the Succession Act 1981.
Who is entitled to claim property under the law of intestacy in Queensland?
The law of intestacy in Queensland provides that the order of succession when a person dies intestate is:
- Spouse (including de facto partners) and children
- Brothers, sisters, nephews, nieces
- Uncles, aunts and cousins
- The Crown
De facto partners
Since 1998, de facto partners have had the same entitlements under an intestate’s estate as spouses.
Section 32DA of the Acts Interpretation Act 1954 defines a de facto partner as: “either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family”.
This section also provides that when determining whether a person has been a de facto partner, the following can be taken into consideration:
- The amount and nature of the couple’s time spent living together;
- The amount of time they have been in a relationship;
- Whether there is a sexual relationship or there was previously;
- The degree of financial dependence and interdependence;
- Their ownership, use and acquisition of property;
- Their commitment to one another including the care and support of one another;
- The care and support of children;
- The performance of household tasks; and
- How they behave as a couple in public and the public perception of their relationship.
The genders of the parties are irrelevant to determining whether they were in a de facto relationship.
For the purposes of intestacy in Queensland, an adopted child is to be treated in the same way that a biological child would be treated, if the adoption occurred after 1936 and the death of the intestate occurred after 1965.
An adopted child is not the child of their biological parents for the purposes of intestacy.
For deaths intestate on or after 1 January 1979, a child who is born outside of marriage has all the same rights in relation to an estate of their parents as does a child born in wedlock. However, there must be proof of paternity.
In-laws are not entitled to a share in the estate under the laws of intestacy in Queensland.
All children of the intestate are considered equal under the law. There is no distinction between children from a first or second marriage or relationship of the intestate.
How to make a claim
The person who organises for the distribution of assets of a deceased’s estate is known as the administrator. If a person has a will, there is often someone nominated as the administrator. However, where someone dies intestate, no administrator will be nominated. In these cases, certain people can apply to be an administrator and can seek a grant of Letters of Administration. Financial entities or other institutions holding property of the deceased person often will not release that property until they have sighted the Letters of Administration.
In cases of intestacy in Queensland, there is a list of people to whom the court can grant Letters of Administration. These are listed below in descending order of priority (Uniform Civil Procedure Rules 1999):
- Surviving spouse (including 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
Other prerequisites for making a claim
In order to be entitled to make a claim in relation to an intestate’s estate, a potential beneficiary must live for more than 30 days after the intestate passes away.
How to determine which jurisdiction applies?
As travel interstate and overseas is becoming more common, it is possible that a person who dies intestate may hold property not only in one place but in several. It is also possible that the person has places of residence in different states or countries. In this situation, determining which jurisdiction’s law of intestacy applies can be complex. For more on this subject, see our article on movable and immovable property.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.