We recently spoke with a woman whose husband had passed away. They had been married for many years and, during their marriage, had bought a home together. However, the property was registered solely in her husband’s name. He later became ill and passed away without making a will.
She assumed the house would simply pass to her. They had built a life together, raised a family together and, in every practical sense, it was their family home. Legally, however, the position was more complicated.
Because the property was registered solely in her husband’s name, it formed part of his estate. And because he died without a valid will, known as dying intestate, his estate had to be distributed according to Queensland’s intestacy laws. Importantly, they also had children, which meant his wife was not necessarily entitled to receive the entire estate. Instead, the estate had to be distributed between the surviving spouse and children according to the formula set out under Queensland law.
It is a situation that is more common than many people realise and, unfortunately, it often only comes to light at the worst possible time.
Dying Intestate in Queensland
If a person dies without a valid will, they are said to have died intestate. Instead of their assets being distributed according to their wishes, their estate is distributed according to a fixed legal formula under the Succession Act 1981 (Qld).
Who receives the estate, and in what proportions, depends on which family members survive the deceased. It does not necessarily reflect what the deceased may have wanted, what family members expected, or arrangements that may have been discussed during their lifetime.
How Is an Estate Divided Without a Will?
The Succession Act sets out how an intestate estate is distributed. In broad terms:
- Spouse but no children: the surviving spouse generally receives the whole residuary estate.
- Spouse and children: the spouse receives the deceased’s personal and household belongings, as well as a statutory legacy. The remaining estate is then divided between the spouse and the deceased’s children in proportions determined by the number of children.
- Children but no spouse: the children generally share the residuary estate equally, subject to the rules that apply where a child has predeceased the deceased leaving descendants.
- No spouse or children: the estate passes to other eligible relatives in the order prescribed by the legislation.
Where there is one child, the surviving spouse is generally entitled to one half of the remaining estate after the statutory legacy. Where there are two or more children, the spouse is generally entitled to one third, with the balance passing to the children.
This is where the story above becomes particularly important. A surviving spouse does not necessarily inherit the entire estate simply because they were married to the person who died. In this case, because the family home was registered solely in the husband’s name, it formed part of his estate and became subject to the intestacy rules.
The statutory legacy is an amount prescribed by law and may change from time to time. The current amount should therefore always be confirmed when administering an intestate estate.
What About De Facto Partners?
Another common misconception is that intestacy laws only protect married couples. Queensland succession law can also recognise a qualifying de facto partner as a spouse for succession purposes, including a same sex de facto partner.
The practical difficulty can be establishing that the person satisfies the legal requirements to be recognised as the deceased’s spouse. Unlike a marriage, where a marriage certificate provides clear evidence of the legal relationship, a de facto relationship may require additional evidence about the nature and duration of the relationship. Where the relationship is disputed or difficult to establish, this can add further complexity, delay and cost to the administration of the estate at an already difficult time.
What About Blended Families?
Intestacy can be particularly important for blended families. Where someone dies leaving a current spouse as well as children, including children from an earlier relationship, the statutory intestacy formula determines how the estate is divided.
This may produce a very different result from what the deceased intended. For example, a person may have assumed that their spouse would inherit their estate and later provide for the children, or they may have intended particular assets to pass directly to children from an earlier relationship. Without a valid will and appropriate estate planning, those intentions may not determine how the estate is ultimately distributed.
What If There Is No Spouse or Children?
Where someone dies intestate without a spouse or children, the legislation provides an order of relatives who may inherit. Depending on who survives the deceased, this can include parents, siblings, grandparents, aunts, uncles and certain other relatives.
If there is ultimately no person entitled to the estate under the intestacy provisions, the estate may pass to the Crown.
Jointly Owned Property Is Not Always Part of the Estate
One of the most important things to understand is that not every asset a person owns or has an interest in will necessarily form part of their estate. When it comes to real property, the way ownership is registered can make a significant difference.
Joint tenants: If a property is owned as joint tenants, the deceased owner’s interest will generally pass automatically to the surviving joint tenant by the right of survivorship. It does not ordinarily pass under the deceased’s will or the intestacy provisions.
Tenants in common: If a property is held as tenants in common, the deceased’s individual share forms part of their estate and is distributed according to their will or, if there is no valid will, the intestacy rules.
Sole ownership: If the property is registered solely in the deceased’s name, the property will generally form part of their estate.
This distinction is exactly why the ownership structure mattered so much in the story above. Although the couple regarded the property as their family home, the legal title was held solely by the husband. Many couples do not consider how their property is legally held until something happens. By then, it may be too late to restructure the ownership or put an appropriate estate plan in place.
Who Administers an Estate If There Is No Will?
A will usually appoints an executor to administer the estate. If there is no valid will, there is no appointed executor and an eligible person will generally need to apply to the Supreme Court of Queensland for a grant of letters of administration before they can administer the estate.
Depending on the circumstances, this process can involve establishing who has priority to apply, identifying the people entitled to the estate, providing evidence of relevant family relationships, completing the required notices and preparing and filing the court application. De facto relationships, blended families, estranged relatives and uncertainty about family relationships can make the process more complicated.
Having a properly prepared will can therefore do more than determine who receives your assets. It can also identify the person you trust to administer your estate and provide greater clarity for the people you leave behind.
Why This Matters for Business and Property Owners
Estate planning becomes even more important where your affairs involve businesses, investment properties, companies, trusts or self managed superannuation funds. Not every asset associated with you is necessarily an asset that can simply be gifted under your will.
Company assets are owned by the company. Trust assets are dealt with according to the relevant trust structure and trust deed, while superannuation and SMSF interests can also involve separate succession considerations. For business owners and property investors, a will should therefore form part of a broader succession plan.
The question is not simply, “Do I have a will?” It is also, “Does my estate plan actually deal with the way my assets and structures are set up?”
Things to Consider
As a starting point, ask yourself:
- Do I have a valid, signed and properly witnessed will?
- When was my will last reviewed?
- Do I know which of my assets will actually form part of my estate?
- Is my property owned as joint tenants, tenants in common or in my sole name?
- If I am in a de facto relationship, is my estate plan clear about how I want my partner provided for?
- Have my circumstances changed through marriage, separation, children, a blended family, a pro
If you are unsure whether your will covers everything you own, or how your property and other assets would be dealt with after your death, speak with Ardor Legal before the Succession Act decides for you.
Book a complimentary 15 minute Discovery Meeting with our team to discuss your estate plan today.
Frequently Asked Questions (FAQs)
Does my spouse automatically inherit everything if I die without a will in Queensland?
No. If there are also children, the estate is divided between the spouse and children under a set formula in the Succession Act 1981 (Qld), rather than passing entirely to the spouse.
What happens to a jointly owned home if there is no will?
If the property is held as joint tenants, it passes automatically to the surviving owner regardless of a will. If it is held as tenants in common, or in one person’s name only, it forms part of the estate and is distributed under the intestacy rules.
Who can apply to administer an estate if there is no will?
Generally the next of kin, in an order set out by the Succession Act, can apply to the Supreme Court of Queensland for Letters of Administration.
What doesn’t a will cover?
A will only covers assets held in your personal name. Anything held through a trust, company or SMSF sits outside the will entirely and is dealt with under that structure’s own governing documents instead.
Do de facto partners have the same rights as married spouses under intestacy?
Yes. In Queensland, a qualifying de facto partner has the same entitlements as a married spouse under the intestacy rules. The practical difference is that the relationship needs to be established, which is more straightforward for a married couple than a de facto couple without a will in place.Yes. In Queensland, a qualifying de facto partner has the same entitlements as a married spouse under the intestacy rules. The practical difference is that the relationship needs to be established, which is more straightforward for a married couple than a de facto couple without a will in place.
