Dying without a valid Will—intestacies

If you die without a Will, you are said to have died ‘intestate’. In this case, your assets are distributed in line with Part 3 of the Succession Act 1981 (the Act).

What are the intestacy rules?

The Act sets out intestacy rules, which means your estate will first go to your next of kin, which is your spouse or de facto partner, and issue (children, grandchildren).

If there is no spouse or issue, then it goes to your parents, brothers and sisters, nephews and nieces, then grandparents, then uncles, aunts and cousins.

There is no provision to distribute your estate to relatives more remote than your first cousins.

A beneficiary must survive the intestate person by at least 30 days to be entitled to share in the estate.

In-laws or step-parents are not considered next of kin and are not included in the rules for the distribution of your estate.

To ensure your estate goes to who you want it to, you should make a Will and keep it up to date.

Who administers an intestate estate?

The person who finalises your estate when you die without a Will is called an administrator.

Among other things, an administrator:

  • pays debts
  • collects assets
  • finalises taxes
  • distributes your assets in line with the intestacy rules.

 Find out more about the duties of an administrator.

As one of the largest administrator of estates in Queensland, intestate estates are often referred to the Public Trustee by both individuals and professionals.  We have a specialist Intestacy Entitlement team who actively trace relatives and beneficiaries in order to determine those persons who are entitled to benefit from an intestate estate.  Our team of professional staff are experts at developing family trees and tracing next of kin throughout Australia and overseas.

What are letters of administration?

An administrator does not have authority to deal with a deceased estate until the Supreme Court of Queensland has granted them ‘letters of administration’; this is similar to the ‘grant of probate’ to the executor of a Will.

In most circumstances, financial institutions who hold assets belonging to a deceased estate will not release assets without sighting the letters of administration.

Before granting letters of administration, the court must be satisfied that the person applying can appropriately administer the estate.

In order of priority, eligible people who may apply to the court are:

  • the surviving spouse (including a de facto partner)
  • children
  • grandchildren or great grandchildren
  • parents
  • brothers and sisters
  • children of brothers and sisters
  • grandparents
  • uncles and aunts
  • first cousins
  • anyone else the court may appoint.  

De facto partners

A de facto partner has the same rights as a spouse, and is defined as 'either one of two persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.'

A de facto partner can be a same-sex partner, or of any gender.

To share in the estate of a partner who has died intestate, the relationship must have been in existence continuously for at least two years ending on the deceased’s death.

In deciding whether two people are a de facto couple, among other things, the following may be taken into account:

  • how long people have been living together, and the nature of their living arrangements
  • the length of the relationship
  • whether or not a sexual relationship exists or existed
  • the degree of financial dependence or interdependence
  • ownership, use and acquisition of property
  • the degree of mutual commitment to a shared life
  • the care and support of children
  • the performance of household tasks
  • the reputation and public aspects of the relationship.

What effect does adoption have?

Where an adoption took place in Queensland after 1936 and a death occurred after 31 July 1965, the adopted person is for all purposes a child of the adopting parents.

For succession purposes, the adopted person is no longer a child of their natural parents.

An adopted person has the same rights as any lawful child to the estates of their adopted parents and the relatives of their adoptive parents, as though they are natural grandchildren, brothers or sisters or nephews and nieces.

When an adopted person dies without a valid Will, their adopting parents and their next of kin have the same rights as if they were the adopted person’s natural parents or next of kin. Additionally, the descendants of an adopted person have the same relationship rights as their parent.

What effect does illegitimacy have? 

A child born out of marriage has the same rights to share in an estate as a child born in a marriage.

 However, there must be a recognised proof of paternity, such as:

  • the father admits paternity during his lifetime
  • paternity is established against the father during his lifetime
  • a declaration of paternity is made by the Supreme Court after the father’s death.

If the father wants to be eligible for a share of a child’s estate, paternity must have been established while the child was living.

More information

If you'd like more information about intestacies, or would like to speak with us about administering an estate, please contact us:

  • Online
  • By phone: 1300 360 044
Last published: 19/12/2019 12:47:05 AM