If you pass away without a valid Will, this is called dying intestate. When this happens and you have an estate in Queensland, the Succession Act 1981 (Qld) sets out how your assets will be divided – and it might not be how you would have chosen.
Here is a simple guide to the rules of succession in Queensland where a person dies without a Will. This information only and not legal advice. There are complexities around the definition of certain terms and the application of these rules. Always seek legal advice which considers your circumstances before making any decision.
Guide to the Rules of Succession
If you have a spouse but no children
Your estate will go to your spouse.
Your spouse is defined as:
- Your husband or wife; or
- Your defacto partner; or
- Your civil partner.
A defacto partner is a person you have lived together with on a genuine domestic basis but who you are not married to or related to by blood, where you have lived together as a couple for a continuous period of at least 2 years ending on the death of your partner. Whether you had been living together on a “genuine domestic basis” will involve a consideration of various factors, including the nature and extent of your living together, the length of your relationship, whether or not a sexual relationship existed, the degree of financial dependency or interdependency, the ownership or use of property, care and support of children, mutual commitment to a shared life, performance of household tasks, and the public aspects of your relationship.
This test should be re-examined if a person is no longer living with their partner due to age or illness.
If you have a spouse and children
The distribution will depend on how many children you have.
If you have one child
Your spouse receives:
- The first $150,000.00 of your estate plus
- All of your household belongings; plus
- Half of the rest of your estate.
Your child receives:
- The other half of the rest of the estate.
If you have two or more children
Your spouse receives:
- The first $150,000.00 of your estate; plus
- All of your household belongings; plus
- One third of the rest of the estate.
Your children share:
- The other two-thirds of the rest of the estate equally.
If you have children by no spouse
Your children will share your estate equally.
If you have no spouse and no children
Your estate passes to your other relatives in the following order:
- Your parents (equally, if they are both alive)
- If no parents, your siblings (brothers and sisters, or their children if they have passed away);
- If no siblings, your grandparents;
- If no grandparents, your aunts and uncles (or their children if they have passed away).
If you have no living relatives
If no eligible relatives can be found, your estate will pass to the State of Queensland.
Why should I make a Will?
These rules might seem straightforward, but they don’t always reflect what people actually want to see happen to their estate. For example:
- Stepchildren are not “children” and cannot take a benefit on intestacy. Step-children often need to bring a family provision application to seek proper provision from a step-parent’s estate.
- No gift can pass to a friend, or a charity.
- Dealing with an intestate estate can cause stress, delays, and extra legal costs for your family.
The best way to make sure your wishes are carried out is to have a valid Will in place.
Don’t leave it on your bucket list. Contact us to get started.
For more information, or to make an appointment to make a Will, call our office on (07) 3188 5124 or find out more about our Estate Planning Services here: Wills & Estates | Donovan Winkler Lawyers
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