What if I die with no Will?

Well, practically speaking, you won’t be around to worry about it, however if you die without a Will it can leave problems for those left behind. 

In Queensland, the distribution of estates where there is no Will (called “intestacy”) is dealt with under the Succession Act and depends upon a number of factors, including what kind of assets are in the estate. 

Of course, as we have discussed here https://www.qbmlawyers.com.au/estate-lawyers-gold-coast/writing-a-will/, not all of things that people believe are their assets actually form part of their estate.  As an example, superannuation proceeds can be dealt with independently of the estate, as can life insurance proceeds, or property that is held in discretionary or other trusts.  As a consequence, some very wealthy individuals might – strictly speaking – have virtually no estate at all. 

Usually however, a person will have at least a bank account in their name, and possibly some property, and there is always the possibility that superannuation proceeds will be paid to their “legal personal representative” who is the executor of their Will or administrator of their estate if they die with no Will or if the appointed executor does not want to act.

Which brings us back to the concept of intestacy.  Where there is no Will, certain persons can apply to the Supreme Court for an order that they are appointed as the administrator of the estate.  It is then their role to gather in the estate and distribute it in accordance with the laws of intestacy.  The descending order of the right of persons to apply for letters of administration in intestacy is actually set out in rule 610 of the Uniform Civil Procedure Rules.  The priority is:

  • The surviving spouse;
  • The children;
  • The grandchildren or great grandchildren;
  • The parent or parents;
  • The brothers and sisters;
  • The children of any deceased brothers and sisters;
  • The grandparent or grandparents;
  • Aunts and uncles;
  • First cousins;
  • Anyone else the court may appoint.

Of course, it may be appropriate for someone else entirely to be appointed. 

The distribution of the estate itself is then dealt with by specific rules in the Succession Act.  Those rules are at sections 35 to 39 of the Succession Act (Queensland) and Schedule 2 of that Act, with some further provisions allowing for the spouse to buy a shared home if there is one.

Because of these matters, dealing with estates where a person has died without a Will can be complicated and it can result in unintended consequences.  As a result, it is always advisable to make a Will and to consider every few years at least whether it needs to be updated – see for example https://www.qbmlawyers.com.au/estate-lawyers-gold-coast/should-i-update-my-will/.

If you have any questions regarding making Wills or administering estates, please contact our Wills and Estates lawyers, Peter Muller at peterm@qbmlaw.com.au or Jessica Murray at jessicam@qbmlaw.com.au