If you die without a Will, you are considered to have died ‘intestate’. How an intestate estate is distributed is determined by the succession legislation in each State and Territory. Dying intestate can have negative consequences on your family and your estate including the following:
- Increased costs for your family in obtaining a grant of letters of administration on intestacy from the Supreme Court to determine who will administer your estate.
- The person you wanted to appoint to administer your estate may not be appointed (this person is known as the executor when appointed by will and known as an administrator in an intestate estate).
- The person/s you wanted to receive your estate (that is, your desired beneficiaries) may miss out.
- Persons you may not have wanted to receive a share of your estate may receive a share in your estate.
The succession legislation in Queensland (being the Succession Act 1981 (Qld)) provides that the beneficiaries of an intestate estate are as follows:
- If the deceased had a spouse but no issue (being all lineal descendants including children, grandchildren, great-grandchildren etc), the spouse receives the entire estate;
- If the deceased had issue but no spouse, the issue receive the entire estate;
- If the deceased had a spouse and issue:
- The deceased’s spouse receives:
- $150,000 plus all household effects; and
- A share of the remainder, the proportion of which depends on the number of surviving children;
- The deceased’s issue (being all lineal descendants including children, grandchildren, great-grandchildren etc) receive the remainder;
- If the preceding points do not apply – the deceased’s parents;
- If the preceding points do not apply – the deceased’s brothers, sisters, nephews and nieces;
- If the preceding points do not apply – the deceased’s grandparents;
- If the preceding points do not apply – the deceased’s uncles, aunts and cousins;
- Finally, if the preceding points do not apply – the Crown.
Having a properly drafted Will avoids unnecessary complications and potential legal battles for your family that arise from dying intestate, which can be costly both financially and emotionally. If you have a Will you can control who administers and who shares in your estate, within the limits of the law.
An example of the litigation which may follow if you die without a Will is the decision of McIntosh v McIntosh  QSC 99. In that case, a 41 year old man died without leaving a will and had no spouse or children. The deceased’s mother received a grant of administration to administer the estate. The beneficiaries of the estate were the mother and father (who had divorced and had an acrimonious relationship). The deceased’s mother also applied, in her personal capacity, to receive the deceased’s superannuation. The court held that the mother had a conflict between her duty as administrator of the estate (to apply to have the superannuation paid into the estate) and her personal interest in applying to have the superannuation benefits paid to her. Consequently the court ordered the mother pay the superannuation benefits to the estate. This meant that they were shared between the mother and the father, rather than just going to the mother. This undoubtedly created unnecessary costs and anguish on the deceased’s parents which could have been avoided.
Points to consider if you do not have a Will:
- If you are young and single, your estate may be worth far more than you think, as superannuation and life insurance can make your estate very large. Technically superannuation and potentially life insurance actually fall outside of your estate, but steps can be taken to bring them within your estate so you can distribute them in accordance with your Will. You may wish for your estate to be distributed other than in accordance with the intestacy rules – i.e. for some or all of your estate to go to your siblings rather than your parents.
- If you have or are contemplating having children, you are likely to want to name your choice of guardian for your child/children.
- If you are separated from your spouse and not yet divorced, you are still legally married and your estranged spouse may be entitled to a share of your estate.
- If you are in a de facto relationship, the Court will need to take several matters into account to determine whether such a relationship existed, which may prove costly and cause unnecessary grief for your partner.
- If you are in a blended family and have stepchildren, you may wish to make provision for your stepchildren. In any event, you and your partner should consider how each of you distributes your estate to provide for each other and the children.
- If you wish to make provision for a family member with a disability, consideration should be given to establishing a trust for that person for their maintenance and care.
- If you have a business, trust or self-managed superannuation fund, the management and control of those entities must be considered and properly documented for your wishes to have effect.
To discuss an estate plan for your individual circumstances, please contact Tracy Pratt, Lawyer from our Wills, Estates & Trusts team for a free initial consultation on 07 3220 1144 or email.