The word “intestate” is derived from the Latin intestatus, which means “not having left a valid will”. If someone dies without a will in Queensland, the deceased estate is identified as intestate, and the assets of the estate are distributed according to the Succession Act 1981. The court decides who inherits an intestate estate according to an order of succession, essentially beginning with the closest relatives of the deceased, usually the spouse and children. Of course, this takes no account of the wishes of the deceased and may leave a significant person in the life of the deceased without provision. This article explores the importance of making a will and the consequences of dying intestate in Queensland.
Is Dying Intestate Common?
There is an understandable reluctance to dwell on mortality, and that can result in people failing to make arrangements for their estate after death. People also often put off making a will because they feel that they have insufficient assets for this to be necessary, or because they are young and healthy. This does leave grieving family members, often still shocked after an unexpected death, with the difficult task of administering an intestate estate. It can also result in extended and acrimonious legal battles as family members fight over the assets of the deceased. When there is no written record of the wishes of the deceased, there is greater scope for parties to disagree over what those wishes could have been.
Partially Intestate Estates in Queensland
Sometimes a person thinks they have a valid will, but after their death, the family finds that the person is actually partially intestate. This can happen if there is a will, but the will is not regularly updated and does not make provision for all the assets of the estate. It is essential that a will is revisited after all major life events (marriage, births, deaths, major property purchases). At a minimum, the original will needs to be drafted by a solicitor making provision for future events.
A life event that can have a major impact on a will is the marriage of the testator. The effect of marriage is to revoke any existing will. The assumption of the law is that a will written by the testator prior to marriage is now irrelevant, as the marriage indicates the testator’s intention to join their estate with their new spouse. This can result in beneficiaries of the obsolete will being disinherited. This may not reflect the wishes of a testator, particularly those who marry later in life but have children from earlier relationships.
Administering an Intestate Estate
The first step in administering an intestate estate is for someone to apply to the Supreme Court of Queensland for Letters of Administration. Typically a family member will lodge this application, but even a creditor of the estate is entitled to make an application. A grant of Letters of Administration authorises a designated person to administer the estate much like an executor but to do so in accordance with legislation, rather than the wishes of the deceased.
Laws of Succession and intestacy
The order of inheritance established by legislation varies according to the particular circumstances of the deceased. In Queensland, the spouse or de facto partner inherits an intestate estate in entirety unless the deceased had children. If there are children, then the spouse receives the first $150,000 of the estate and all household belongings, and one-third of the remainder with the surviving children. The estate of a single person with children is divided equally amongst the children. If someone single and childless dies intestate, then the deceased’s parents inherit the estate. Where the parents are already deceased, then the deceased’s siblings inherit equally.
Estranged and De Facto Spouses
One complication that can arise from dying intestate is that if the deceased was separated from their spouse, but not divorced, the deceased is still seen as married in the eyes of the law. The deceased’s estranged spouse is therefore entitled to the spouse’s portion of the intestate estate.
A de facto spouse is entitled to inherit under laws of intestacy in Queensland in the same manner as a married spouse if they can prove the relationship qualifies as de facto. The easiest method of proving a de facto relationship is if it was previously registered with the state. Alternatively, a partner can prove that they lived with the deceased as a de facto on a genuine domestic basis for at least two years prior to death. The court will assess whether the relationship had genuine de facto status according to factors such as the length of the relationship, whether there was a sexual relationship, whether there are children, a common residence, financial interdependence and the level of commitment between the parties.
Armstrong Legal can help you draw up your will to avoid any chance of intestacy. Please contact us on 1300 038 223 or send us an email.