Dying without a will: Understanding intestacy

Writing a will ensures that an individual’s last wishes regarding the distribution of their estate are carried out as closely as possible. Traditionally, upon the testator’s death, the executor follows the instructions laid out in the will to the best of their ability. The executor has the same powers that the deceased had while alive.

However, there are a number of circumstances where a person is judged to have died without a will, known as dying ‘intestate’. The reason may simply be that no one can find the will or the deceased never wrote one.

A will may be present but considered invalid, either because the deceased was not of sound mind at the time of writing or was unduly influenced. There is also a requirement for two people to sign and acknowledge the will in the presence of the person writing the document.

If an individual has died intestate, the deceased’s assets are distributed according to a specific set of guidelines. Section 5 of the Succession Act 1981 (QLD) details the process by which intestacy rules are followed.

People who want more information on the state’s intestacy legislation should get in touch with wills and estates lawyers. Legal experts should be able to provide help and advice on the best ways to proceed with the distribution of an estate when someone has died intestate.

Spouses and children of the deceased are usually the primary beneficiaries, although the actual share of assets each individual receives depends on the value of the estate and the number of offspring. In cases where the person who died had no partner or children, the estate instead goes to the closest next of kin.

In descending order, this would be parents, siblings, nephews and nieces, grandparents, uncles and aunts, and first cousins. If there are no living relatives, the deceased’s assets pass to the Crown.

Experienced wills lawyers can help you with a range of services relating to estate planning, including preparation of Testamentary Discretionary Trusts, probate and superannuation issues.