FOXLAW on QLD Property Law

Law in QLD - What happens if you die without a Will (and why you shouldn’t)?

If you die without a Will, you are said to have died ‘intestate’. If you die intestate, you don’t have a say over what happens with your estate assets when you pass away.

What are the rules of intestacy?
Certain default rules of succession apply to the estates of those who die intestate (without a Will). As represented below, estate assets will go to the spouse and ‘issue’ (biological children and/or grandchildren depending on who is living), and then in the absence of a spouse or issue, then onward to the parents of the deceased, and so on through to the outer rings. Ultimately, if you have no living relatives when you pass away, your estate assets may pass to the Crown (the Government).

Why you shouldn’t die without a Will:

No executor
Without a Will, you won’t have a validly appointed executor who can take care of the process/paperwork of dealing with your estate. Instead, a person or persons will need to apply to the Court to be appointed as your administrator. There is a default hierarchy as to who the administrator would usually be (a person lower on the list would need to give reasons why they should act instead of someone higher on the list).

No say on how your estate assets are shared/distributed
When you don’t have a Will, you don’t get a choice who receives your estate assets. So, if you’d rather distribute your assets in a way that doesn’t follow the default intestacy rules, such as choosing a brother or sister to inherit your belongings instead of a parent, you should make a Will to provide for this.

Increased stress for your loved ones
When someone passes away it is already an emotional time, and not having a Will can amplify this stress. If you have a Will, the process can run more smoothly, and your loved ones will have one less thing to worry about.

Leaving your children without an appointed guardian
If you have children (or are potentially planning to have them), you can appoint a guardian or guardians in your Will. Naturally, there are other (sometimes very costly) court processes which can assist in resolving who is to be the guardian of your children if you don’t have a Will (or fail to appoint a guardian in your Will). However, exercising a conscious choice in respect of a suitable guardian seems the preferable (and certainly more thoughtful) approach.

More costly administration costs (generally)
Having a valid Will can reduce the financial cost of administration of your estate as, in most cases, there is already an executor appointed (avoiding the need to apply to the Court to appoint an administrator) and a distribution detailed in the wording of the Will. Unless the Will is challenged, this distribution (who gets what) is generally followed.

Foxlaw can assist with Wills and estate planning (the other things you need to take care of besides the Will document itself). We can also prepare Enduring Powers of Attorney. Organising your estate planning ahead of time ensures you don’t add unnecessary pressure on your loved ones at an already difficult time. Hope for the best, but plan for the worst!

Special thanks to Jemma McKenzie (law student) for her assistance with this article!