WHAT HAPPENS IF I DIE WITHOUT A VALID WILL?

According to a recent study undertaken by the Australian Research Council, almost 41% of Australians have not prepared a will in the event they pass away suddenly. This inevitably causes issues for how the deceased person’s estate should be distributed and can often be a stressful time for loved ones if conflict arises in relation to an estate’s distribution.

When a person passes away without a valid will in place, this is called ‘intestacy’. Intestacy can also occur where a person has made a valid will, however, the will does not effectively dispose of all the person’s property within their estate. Intestacy rules in Queensland are governed by Part 3 of the Succession Act 1981 (Qld) and estate allocation must be determined in accordance with these rules.

How will your estate be allocated to family and friends?

If you die intestate in Queensland, estate allocation will be distributed to any existing spouse or children first. Where you have a spouse with no children, the whole estate will be allocated to the spouse. Where there is no spouse, de facto or children, it will pass to the next of kin in order of priority. The priority for next of kin dictated in the Succession Act 1981 (Qld) means that the assets will be distributed in order to parents, brothers and sisters, nephews and nieces, then grandparents, then uncles, aunts and cousins.

A deceased person’s mother-in-law, father-in-law, and step-parent are not included as next of kin in the legislation for the distribution of an intestate estate. If you would like to include these family members or other loved ones in the distribution of your estate, or if you would like to spread the distribution of your assets to various parties in a particular way, it is necessary that you make a will to guarantee your choice of estate distribution. Having an up-to-date will is not only in your best interest, but also benefits your family and loved ones. A valid will clearly demonstrates your wishes which will reduce additional stress, lessen the cost of administering your estate, and avoid disagreement between your family and loved ones at what is already a very stressful and emotional time.

Who can be your personal representative?

In the case of intestacy, a personal representative is known as an administrator. An administrator will be appointed by probate to finalise your estate if there is no valid will. Personal representatives are required to collect, administer and protect the property for the interest of the next of kin (or creditors and beneficiaries of the estate). Similarly, in the case where a valid will exists, the personal representative is a called an executor and this person is appointed under the will to administer the deceased estate in accordance with the terms of the will.

The following individuals may be granted by the court to become administrator (in order of priority):

  • Spouse
  • Children
  • Grandchildren (or great-grandchildren)
  • Parents
  • Brothers and sisters
  • Nephews and nieces
  • Grandparents
  • Uncles and aunts
  • First cousins
  • Anyone whom the court may appoint.

What are letters of administration?

In cases of intestacy where no valid will exists, letters of administration are generally required to grant an administrator the right to distribute the intestate’s property. Letters of administration show that the court is satisfied that the person named in the grant is authorised to administer the estate. In some cases, you may not require letters of administration, however, it is prudent to seek legal advice prior to administering an estate in any event.

There are five steps in the process of applying for a grant of letters of administration (similar to a grant of probate) which include:

  • Advertising your intention to apply in the Queensland Law Reporter and completing Form 103
  • Giving a copy of the notice to the Public Trustee
  • Waiting 14 days after your notice appears in the Queensland Law Reporter to enable people to object to your application
  • Preparing your application including completing the relevant documentation and affidavits
  • Filing your application and supporting documents at the nearest Supreme Court to where the deceased person lived, either in person or by post.

What happens to your superannuation?

It is important to note that your superannuation may not form part of your estate after you pass away. The trustee of your superannuation fund will determine the distribution of your superannuation funds in accordance with the Superannuation Industry (Supervision) Act 1993 if a binding death nomination does not exist. Find out more about nominating beneficiaries to your super fund here.

Need help?

The Wills & Estates team at DSS Law are experienced in estate planning and succession law including drafting wills and powers of attorney. We ensure the welfare and administration of our clients’ financial and legal affairs are managed in your best interests at all times.

Renee Pappagallo 06/03/2018

Disclaimer

DSS Law insight articles are intended to provide commentary and general information. They should not be relied upon as formal legal advice. If you would like specific advice relating to this topic, please contact DSS Law on 1300 DSS LAW or epost@dsslaw.com.au.