I was recently asked by Tim Moore of Business and Estate Planning Specialists as to what happens when a person dies without making a Will, and how is the Estate of the deceased person distributed?

This is a very good question and highlights the need to have a valid and binding Will so that upon your death, the assets that form your estate go to the people you want them to go to.

“Intestacy” is defined in the Queensland Succession Act as meaning a person who dies and either does not leave a Will, or leaves a Will but does not dispose effectively by will of the whole or part of his or her property.

Firstly, an application will need to be made to the Court by the surviving spouse or children seeking an Order that the Estate be distributed in accordance with the intestacy rules.

Generally speaking (there are some other specific nuances in this area) the intestacy rules are as follows:

1. Intestate survived by a spouse

The spouse receives the whole of the Estate.

2. Intestate survived by spouse and children

The spouse receives a base entitlement of $150,000 and the household chattels. After this amount is allocated then the spouse receives an additional one half or one third of the remainder of the residual estate, depending on the number of surviving children.

If there is one child, the spouse and the child would each be entitled to one half of the remainder of the Estate. If there is more than one child, then the spouse receives one third of the remainder of the Estate and the children share the other two thirds.

 3. When the intestate is not survived by a spouse but is survived by children

If there are surviving children they are entitled to the whole of the estate in equal shares.

 4. When the intestate is not survived by a spouse or children

If there is no surviving spouse and no surviving children then:

1. the parents, followed by;
2. the next of kin (which includes siblings, grandparents, aunties, uncles, nieces, nephews, and first cousins of the deceased), and then;
3. the Government,

are those entitled to the residuary estate.

It is therefore very important, given the broad definition of “next of kin”, and the fact that your estate could go to the Government, that a properly drafted and signed Will is completed. If you have any questions regarding a Will, please don’t hesitate to contact me.