What happens to your assets if you die without a will?

If you die without a will, you are said to have passed away ‘intestate’. This means your estate (your assets) will be administered and distributed according to Queensland’s laws of intestacy.

Having a will allows you to legally protect your spouse, children, other family members and your assets. It also allows you to appoint an executor to administer your estate and to have control over how you want your estate to be distributed.

What is an asset?

An asset is anything you own that has a monetary value. An asset can be the home you live in, other properties you own, motor vehicles, investments, art collections, personal belongings, cash, bank accounts balance, superannuation, shares, and the list can go on. Your estate lawyer will be able to help you identify your assets during your estate planning discussion.

What makes a will current and valid?

A will documents the wishes you want to come into effect when you die. A valid will is your last written wish which is witnessed by two people while you have full mental capacity. All three parties need to be physically present to sign and witness the document. Your lawyers can also witness the documents. The costs of administering an estate where there is a current and valid will can be significantly less than where there is no will, or where the will is not valid.

Who administers my estate?

If you pass away intestate, an ‘eligible person’ must apply to the Court for a grant of Letters of Administration enabling them to become the legal representative of your estate. This grant will appoint someone as the administrator of your estate so they can deal with your assets (i.e. bank accounts etc) to finalise your estate.  The administrator will be responsible for paying off debts and ensuring the estate is divided appropriately in accordance with the intestacy rules.

In order of priority, the following people are eligible to apply to the Court to be appointed as the administrator of your estate if you die without a will:

  1. surviving spouse (including a de facto partner)
  2. children
  3. grandchildren or great grandchildren
  4. parents
  5. brothers and sisters
  6. nephews and nieces
  7. grandparents
  8. uncles and aunts
  9. first cousins
  10. anyone else the court may appoint.

How will my assets be distributed?

Part 3 of the Succession Act 1981 (Qld) sets out the entitlements of the next of kin of an intestate person. How an intestate estate is distributed depends on the circumstances of the deceased.

If you pass away intestate, your estate will be distributed to the closest next of kin, first being your spouse (including a de facto partner) and then your children.

If at the time of passing you had a spouse, with no children, then the whole estate will go to the spouse.

If you had a spouse, and have children, then your spouse will receive the first $150,000 of the estate and all household goods. The remainder will then be split equally between the spouse and your children.

If you are single and have children, the children will receive the balance of the estate in equal shares.

If you have neither a spouse nor children, then the estate will be distributed to the following people in the following order:

  1. parents
  2. siblings, nephews and nieces
  3. grandparents
  4. uncles, aunts and first cousins
  5. The Crown.

 

Cornerstone Law Offices can help you with all of your needs in regards to wills & estate planning and estate administration of deceased estates. Call us on 1300 267 637 for an initial complimentary consultation (or contact us by clicking here).

What to look for when engaging an estate administration lawyer

Wills and estate administration is a highly litigated area of law requiring solicitors to be extremely vigilant.  A solicitor failing to ask a relatively mundane question can lead to terrible consequences for a client and beneficiaries of a will such as a beneficiary not acquiring their beneficial interest or ending up in a costly litigation.

The law is always changing

Estate laws are constantly changing because of new court decisions and amendments to old provisions. This area of law intersects with multiple other areas of law. For example, an ex-spouse may have a claim to the testator’s estate pursuant to family laws; a beneficiary may not be allowed to acquire corporate interests without having a shareholder vote pursuant to corporation laws; or a beneficiary may end up having to record his/her inheritance as an income for the year causing him/her to pay more capital gains tax pursuant to tax laws.

What to expect from your solicitor

When taking instruction, a solicitor should:

  • make detailed notes
  • determine and review any previous wills
  • determine the assets/liabilities/creditors
  • determine locations, identities and any aliases of appointers, trustees and beneficiaries
  • investigate the client’s capacity and level of urgency to make a will
  • verify the types of title ownership over assets
  • advise the client on the rule of ademption and pecuniary legacies
  • advise the client to speak to an accountant in relation to tax consequences
  • provide advice on the best and worst outcomes
  • ask probing questions to investigate the client’s family structure, make sure the estate is solvent, funeral arrangements, superannuation, life insurance, discretionary trusts, companies, enduring Power of Attorney, Advance Health Directives
  • advise on minimising risks from potential people having a claim to their estate regardless of being a beneficiary named in the will.

Solicitors are officers of the Court
As an officer of the Court, solicitors have a duty to collect and record all evidence that is relevant, not only evidence which may support the validity of the will, but also evidence that may cast doubt upon it. Solicitors must strive to remove ambiguity from wills and record all instructions and evidence. Where a person lacks testamentary capacity, s.21 Succession Act 1981 (Qld) may allow the Court to authorise a will to be made, altered or revoked on behalf of the incapacitated person.

Cornerstone Law Offices can help you with all yours and your loved ones Wills & Estate planning and Estate Administration of deceased estates. Call us on 1300 267 637 for an initial complimentary consultation (or contact us by clicking here).

Where will my hard-earned assets end up when I die?

It depends on whether or not you have a valid Will. There are technical requirements for the preparation and signing of a Will for it to be valid.

To ensure that your estate, your hard-earned assets, is distributed according to YOUR wishes rather than a legislative formula being used to determine who gets what, you should obtain legal advice and make a Will.

The costs to your estate if your Will is challenged in court, or has to be proven as your last Will, or if you die without a Will, the costs of obtaining letters of administration, if required, to distribute your estate, will be substantially greater than the cost of making a Will. It also prevents confusion, conflict, and stress in the future for your family.

“I don’t need a Will because I am too young, I don’t own a house or a car” – Wrong!!

The value of your estate may be worth more than you think. You may have superannuation, receive an inheritance, or in the event of an accidental death, the proceeds from an insurance payout will need to be distributed.

Before you pack your bags for local, interstate, or overseas travel during holidays, make a Will, then relax, knowing that your loved ones are taken care of.

If you have a Will, review it regularly, especially when significant events occur such as the purchase or sale of an asset, separation, remarriage, the birth of a child. Certain life events may also render your Will invalid.

Contact Cornerstone Law Offices for solid legal solutions in Wills & Estates, all aspects of Family Law, Conveyancing and Debt Recovery.

CORNERSTONE LAW OFFICES
Level 27 Santos Place, 32 Turbot Street, Brisbane
Suite 35, 37-59 Bryants Rd, Loganholme 4129
Phone: 1 300 CORNERSTONE (267 637)

101 Ashmore Road, Bundall, Gold Coast 4217

Phone: (07) 5538 9119