By Erlinda Nunn
In Queensland, if you pass away without a Will you are considered to die ‘intestate’. This means someone you might not have wanted as your executor could get to be in charge of your estate and there won’t be a document in place which governs how your assets are to be distributed.
Having a valid and up to date Will ensures your assets are distributed to those who you would like to benefit from your estate rather than leave them to the rules imposed by law (which are known as the Intestacy Rules)
The Intestacy Rules
The rules for dealing with an intestate’s estate are outlined in Part 3 of the Succession Act 1981. The Intestacy Rules govern the distribution of your estate to your next of kin such as your spouse, de facto partner and children or grandchildren. If you are not survived by a spouse or children, then your estate is distributed to your family in the following order:-
- brothers and sisters;
- nephews and nieces;
- grandparents; then
- uncles, aunts and cousins (no more remote than your first cousins)
There are some people who will never benefit from an intestate estate such as your parents-in-law or a step-parent.
Grant of Probate v Grant of Letters of Administration
An application for a grant of probate is made to the court by an executor appointed by a Will. A grant of probate confirms the validity of a will and that an executor has the authority to deal with the assets of the estate.
On the other hand, an application for a grant of letters of administration is made to the court where there is no Will (or where a nominated executor has died or they have renounced i.e. they have decided they do not want to be the executor). Usually, the person with the greatest entitlement to the estate will apply to the court to be granted the formal right to administer. Rule 610 of the Uniform Civil Procedure Rules outlines in descending order of priority, the people who the Court may grant Letters of Administration to which are the deceased’s:-
- surviving spouse
- grandchildren or great-grandchildren
- brothers and sisters
- children of brothers and sisters
- uncles and aunts first cousins
- anyone else the court may appoint
Who gets what?
Section 35 of the Act sets out a ‘formula’ of who will benefit from the estate and in what proportions, depending on the circumstances of the intestate. For example, if the intestate is not survived by issue (children) but is survived by one spouse, the spouse is entitled to the whole of the residuary estate. If the intestate is not survived by a spouse, issue or a parent, siblings, nephews and nieces and so forth, then the residuary estate shall be deemed ‘bona vacantia’ and the Crown (i.e. the State of Queensland) will get the lot.
This predetermined formula can sometimes prove to be problematic as the intestate’s estate may have to be distributed between more than one surviving spouse or to a relative who did not have much contact with the deceased which may cause significant emotional and financial stress.
Well that’s easy!
Make a valid will and perhaps a superannuation Binding Death Benefit Nomination to ensure your wishes are carried out and there is certainty for all.
If you would like to make a valid will just contact us and we can let you know what we require and how much it will cost.