While most people understand the importance of making a will while they’re still alive, many of us either never get around to it or leave a will which for one reason or another, is not valid.
The importance of a will is that it is a legal document containing your specific instructions and directions for how you want various matters to be dealt with after your death, from funeral arrangements to guardianship of children and how your assets should be distributed among your chosen beneficiaries. These matters will then be handled by a person you appoint, your executor. Ideally a properly made will avoids messy fights between family members after your death over what you really wished to happen with your estate.
However, what happens when you fail to make a will, or your will is invalid and you die intestate? This may cause a number of complications for your surviving family members that can be both costly and time-consuming for them to unravel.
The process when you die without having made a will
In the absence of an executor, an administrator must be appointed to perform a similar role – dealing with assets, paying out debts, and distributing any proceeds of the estate to the appropriate beneficiaries. Only a certain category of persons can apply to the Supreme Court for Letters of Administration in order to be appointed as the administrator of a deceased person’s estate. An application will be considered from the following list of people in this order:
- The surviving spouse (including a de facto partner);
- if no spouse, then any children of the deceased;
- if no surviving children, then grandchildren or great grandchildren;
- if no surviving grandchildren or great grandchildren, then the deceased’s parents;
- if no parents, then brothers and sisters, then children of brothers and sisters;
- if no siblings or children of siblings, then grandparents, then uncles and aunts, then first cousins;
- if no surviving family members, then anyone else the court may appoint, including the Public Trustee of Queensland.
The process for applying to be the administrator of an intestate person’s estate includes advertising your intention to apply; giving a copy of your notice to the Public Trustee; preparing your application documents; filing with the Supreme Court. Seek experienced legal guidance on this process as it can sometimes be complex.
Once the administrator is appointed, that person is bound to administer the estate in accordance with the rules under the Act.
Without a will, how will the estate be divided?
When someone dies without a valid will, the rules of intestacy contained within the Succession Act 1981 (Qld) (“the Act”) stipulates who is to receive your estate.
If you die without a will in Queensland, your spouse will receive the first $150,000 of your estate and all household chattels, plus one-third of what remains where there is more than one child. The children will share the remaining two thirds of the estate. If there is only one child, the spouse will receive all household chattels and half of what remains above $150,000. If no spouse or children, then an order of inheritance applies as per the list above of those who can apply for administration of the estate.
These rules apply even where the distribution leaves a spouse with insufficient funds to maintain their lifestyle, and even where the deceased had an estranged relationship with a child and did not wish for them to receive a share of the estate.
Further complications arise where the deceased may have separated from their spouse but failed to obtain a divorce before their death. In this situation, the deceased will be considered to be still married and therefore the estranged spouse will be entitled to a share of the estate under the intestacy rules.
There is also the question of proving the ‘de facto’ status of a relationship. In this circumstance, in order for the partner to share in the deceased’s estate if they died intestate, the deceased and his or her partner must have lived together as a couple on a genuine domestic basis for a continuous period of at least two years (ending on the deceased’s death).
A court will take into account a number of factors to confirm whether a relationship was de facto, including the nature and extent of common residence; the length of the relationship; whether or not a sexual relationship existed; whether there are children; financial dependence or interdependence; the degree of mutual commitment to a shared life and other factors.
Since 1 April 2003, the term de facto partner covers same sex couples for deaths after that date.
Can you dispute an estate distribution where there is no will?
It is possible for a person to dispute the distribution of an intestate person’s estate but that person will need to show the deceased’s’ spouse, child or dependant as per the Succession Act, and that the estate failed to properly provide for their needs.
Applications of this nature can often be from step-children, de facto partners and other financial dependants with some connection to the deceased. Some of the factors taken into account in determining whether you should be provided for in the estate include:
- Your position in life (finances, health, familial obligations and more);
- whether the deceased had a moral obligation or responsibility to you;
- the extent to which you relied on the deceased;
- any reasons why the deceased may not have included you in the will.
The importance of good advice
There are a number of administrative steps to be taken when it comes to dividing the estate of a person who dies without a will. These can be complicated and take more time than you likely have to spare.
Trusting the advice and guidance of an experienced law firm with expertise in wills and estates, including the statutory rules of intestacy, is highly advised. If you find yourself in this situation, contact Delaney & Delaney today. Our integrity and commitment to excellence is demonstrated by the fact we’ve been around since 1915 and have decades of experience in issues relating to wills and estates. Contact us today on (07) 3236 2604 or admin@delaneyanddelaney.com.au
