Find out what happens and what you need to do in Queensland if there’s no last will and testament.
When someone dies intestate, they’ve died without all of their possessions being assigned to someone. This might be because they didn’t leave a will or no will could be found, or because their will didn’t properly dispose of all assets.
Any estate that cannot be distributed according to a last will and testament is intestate, and therefore subject to the laws of intestacy. These laws determine the exact order of inheritance, who gets what, and the steps that need to be taken in order to make sure the rightful inheritors get intestate assets. Note that the following information is general in nature only, and that you may want to contact a professional for help with intestate assets in your personal situation.
These laws determine the exact order of inheritance, who gets what, and the steps that need to be taken in order to make sure the rightful inheritors get intestate assets. Note that the following information is general in nature only, and that you may want to contact a professional for help with intestate assets in your personal situation.
Note that the following information is general in nature only, and that you may want to contact a professional for help with intestate assets in your personal situation.
Who inherits what, and how much do they get?
The general inheritance order, in relation to the deceased, is:
- Spouses and partners
- Nephews and nieces
- Uncles and aunts
Generally, once one of the above levels is able to inherit then the whole intestate estate will go to that level. However, the same level might include multiple generations, such as a brother and a nephew. This is because if any of the above would be entitled to inherit but have also passed away, then their own children may be eligible to inherit instead.
For example, if the deceased has no surviving children but does have grandchildren, then the grandchildren would be in line ahead of their great-grandparents (children before parents).
Or, consider where three siblings are set to inherit one-third each, but one of those siblings has passed away but is survived by two children (the deceased’s nephews/nieces). Here the two living siblings might inherit one-third each, while the nephew and niece would get one-third between them (dividing up their parent’s share).
In line with these rules, assets can be divided among a wide range of extended family members up to first cousins. If no family is found then the state may inherit the amount.
Special conditions also apply to the first two stages, for children and spouses, with provisions for dividing amounts between them, or between multiple partners.
Spouses and partners
A de facto domestic partner may be entitled to inherit with all the benefits of a spouse. One might be recognised as a de facto partner if they were living with the deceased for at least two years prior to death. Other factors are also considered, such as the extent to which the deceased and their de facto were in a public relationship, and whether they had made long-term commitments to each other. If there is both a de facto partner and a spouse then both might divide the inheritance to which a spouse is entitled.
With no children
If there are no children then the spouse/partner may inherit it all.
- Estates valued under $150,000: If the intestate assets are worth less than $150,000, excluding personal possessions, the spouse/partner may inherit it all.
- Estates valued over $150,000: If the intestate assets are worth over $150,000, excluding personal possessions, then the spouse/partner may inherit the first $150,000, and either half or a third of the remainder.
- With one child: The spouse/partner may inherit half of the remainder, while the child (or grandchildren, as applicable) gets the other half.
- With more than one child: The spouse/partner may inherit a third of the remainder, with the other two-thirds being divided among all the children (or grandchildren, as applicable).
How to access and distribute intestate assets
A will should specify who the executor of an estate is. However, where there is no will then someone else will often need to step in as the executor of an estate.
This person may need to apply for a grant of administration before they can get started. A grant of administration is essentially a letter from the Queensland Supreme Court saying that someone has been legally appointed as an estate administrator and that they are allowed to access the deceased’s assets, such as bank accounts.
The courts can decide whether someone is an appropriate executor on a case by case basis, after receiving applications. It will generally prioritise applications in the following order:
- Spouse or partner
- Grandchildren or great-grandchildren
- Brothers and sisters
- Nieces and nephews
- Uncles and aunts
- First cousins
- Anyone else
- Paying off debts
- Tracking down relatives and inheritors to the fullest extent reasonably possible
- Ensuring that the estate is divided and received appropriately