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:
- surviving spouse (including a de facto partner)
- grandchildren or great grandchildren
- brothers and sisters
- nephews and nieces
- uncles and aunts
- first cousins
- 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:
- siblings, nephews and nieces
- uncles, aunts and first cousins
- 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).