What happens when you pass away without a valid Will?

Note: This is a general overview of advance life planning and intestacy law is not to be considered as legal advice.

If you die without a Will your estate is distributed according to the Succession Act 1981. The Succession Act has a formula for how assets are distributed.

Key words and their meaning

Estate – all the money, property and assets owned by a person to be distributed after they have passed away.

Beneficiary – someone who receives a portion, or all, of a trust, Will, or life insurance policy after a person has passed away.

Administrator of the Will – the person who deals with the estate of the person who has passed away. They are also called “the Executor”.

Intestacy – When a person dies without a Will, they have died “intestate”. Intestacy is an estate where someone has died without having a valid Will.

Spouse – A spouse is a person who is married, a de facto partner, or a registered partner (under The Civil Partnerships Act 2011).

De facto – A de facto partnership is two people who are living together in a genuine relationship for 2 years or more, regardless of gender.

Next of kin – A next of kin is a person’s spouse, de facto partner, or their closest living blood relative/s

Illustration of an intestacy scenario

Did you know?

  • If there is no surviving next of kin, and no one entitled to the estate, your estate will go to Queensland Treasury on behalf of the crown.
  • If there is a beneficiary of an estate, but they cannot be found, their share may go to unclaimed monies, and held there in their name until they can claim it. This is the case even if there is a Will and the executor cannot find a beneficiary named in the Will.
  • Half-siblings are treated as full siblings when it comes to finding your beneficiaries.
  • If children under 18 are the beneficiaries, the funds are held in a trust until they are 18.
  • Stepchildren and stepsiblings can argue a claim, but they are not automatic beneficiaries of an estate, unless they have been included in the Will.
  • If there is no Will, the Public Trustee is often appointed to administer the estate on intestacy. However, this is not always the case. Sometimes a next of kin who would be entitled to benefit from the estate on intestacy will apply directly with the court to become the administrator of the estate.
  • Depending on the situation, having two legal spouses can complicate distribution of an estate. Having two legal spouses can include a person you are legally married to but are separated from, and a new partner you have formed a de facto relationship with.

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Last published: 17/08/2021 11:09:59 PM