If a will cannot be located, it is usually presumed the deceased died ‘intestate’. This means without a will.
Contrary to popular folklore, if you do die without a will your estate does not automatically pass to the State (Crown). Part 3 of the Succession Act 1981 (Qld) sets out the order eligible family will inherit your estate if you die without a will. Your estate will only fall to the State if you die without eligible relatives. The sections of the Succession Act which set out who inherits are known as the intestacy rules.
Inheritance according to QLD Intestacy Rules
The following is an overview of who stands to inherit from a deceased estate.
Married / De Facto Spouse no children
The spouse or civil partner will take the whole of the residuary estate. The residuary estate means what is leftover after the deceased’s debts and administration expenses are paid.
Married / De Facto Spouse with Children
The spouse or civil partner will receive $150,000, the household chattels plus one-third of the residue. The remaining two-thirds of the residue are distributed between the deceased’s ‘issue’ meaning children.
Single with Children
If you have children and do not have a spouse, your estate will be distributed equally between your ‘issue’ meaning children. If a child does not survive you, but that child has children of their own, they will take the deceased child’s share. Put another way, your grandchildren will take their mother or father’s share if their mother or father are not alive.
Single without Children
If you are single and have no children, your estate will be distributed to relatives in the following order:-
- brothers, sisters (or if a sibling is deceased, their children will take their share i.e. your nephews, nieces)
- uncles / aunts (or if their children – your cousins – if they predecease you)
- the Crown (i.e. Queensland Government – bona vacntia).
Applying for Letters of Administration
Letters of Administration are a Court order that appoints an Administrator to administer an estate when there is no will. This Application is also used when the will does not appoint an Executor, known as Letters of Administration with the Will. Chapter 15 of the Uniform Civil Procedure Rules 1999 stipulates the order of priority for who can apply.
Before filing, you must search for a will. If none can be found, you may proceed to file the following documents at the Supreme Court:
- an affidavit stating your relationship to the deceased, your eligibility and priority to other persons who may apply (e.g. you are a spouse, de facto spouse, child etc).
- an affidavit confirming the advertisements and searches undertaken to locate the will;
- an application for Grant of Letters of Administration.
Who is eligible to inherit if there is no will?
If you die without eligible relatives
If you die without a will and have no eligible relatives, your estate will pass to the State (Crown). In Queensland this is the Queensland Government. The estate may still be contested by way of family provision claim by a spouse, child or select dependant persons.
Order of Priority
If a person dies without a valid will in Queensland, the order of priority for Letters of Administration on Intestacy is:-
- the deceased’s surviving spouse;
- the deceased’s child or children;
- the deceased’s grandchildren or great-grandchildren;
- the deceased’s parent or parents;
- the deceased’s brothers and sisters;
- the deceased’s nieces and nephews;
- the deceased’s grandparents;
- the deceased’s uncles and aunts;
- the deceased’s first cousins;
- anyone else the court may appoint.
When filing you must also file the applicable filing fee. Call us for an assessment on 1300 844 678. Learn more about the application process and our fixed fee service.