Why do you need a Will – what happens if you don’t have one?

If a person dies without a valid Will this is described as dying intestate. Part 3 of the Succession Act 1981 (the Act) in Queensland contains provisions for estate administration when someone dies intestate. Schedule 2 contains the details of what happens in different circumstances depending on whether there is a surviving spouse, child or other family. In the Act, children are referred to as issue.

If a person you are related to has died without a Will it is best to consult with a lawyer for advice about how the estate is to be distributed and who has authority to administer the estate. Those who persons have relevant relationships in determining how an estate will be divided are any surviving spouse, children (issue), along with brothers and sisters, grandparents of the deceased as well as brothers and sisters of a parent of the deceased, and any children of any brothers and sisters of a parent of the deceased.

This distribution may not reflect your wishes or your family’s needs, but there may not be anything they can do. Some people you consider family may also be excluded from the rules of distribution – for example, step-parents, mother/father in laws, and relatives more remote than first cousins are all excluded from the provisions. Further, if there are children, a surviving spouse does not automatically receive the estate.

If you have no living relatives and die without a valid will your estate is paid to the State government. A will would allow you to avoid this and perhaps donate your estate to a charity or a cause which you support.

How does my estate get administered without a Will?

If a person has died without a will you may need to apply for Letters of Administration to administer the estate. This document will provide the Administrator with authority to deal with the estate. This will generally be required before financial institutions will release any assets from the estate.

The Supreme Court must be satisfied that the person applying is the appropriate person to apply. Priority is given in accordance with the Court Rules and is generally as follows – spouse, child, grandchild, parents, siblings and so on.

In order to obtain a grant of Letters of Administration your administrator must do the following:

Advertise their intention to apply for Letters of Administration. This involves placing an advertisement in the ‘Public Notices’ section of a local newspaper, for example the Courier Mail in Brisbane, as well as in the Queensland Law Reporter;
Provide a copy of this advertisement to the Public Trustee;
After fourteen days has passed, file an Application for Letters of Administration in the Supreme Court. Your administrator will need to file an affidavit confirming they are the appropriate person to apply, and one confirming that the advertising requirements have been met. Your administrator will also need to file the original Death Certificate, this will not be returned;
The court will then issue the grant of Letters of Administration, usually within six to eight weeks of the application being filed.

After you have obtained a grant of Letters of Administration, your administrator will then have the formal authority of the Court to undertake the actions required to administer the estate.

What are the consequences of not having a will?

As you can see there is much uncertainty if you die without a will. In summary:

Your estate may be distributed in a manner which you didn’t contemplate or didn’t wish for;
Additional stress caused to your family, who will have to sort out your estate and may encounter conflict between the beneficiaries;
Possible additional costs for your family in making an application for Letters of Administration, particularly if your estate is straight forward.

To find out more about preparing a Will or seeking assistance to administer an estate for someone who has died without a Will and to see how we can assist you, contact our office on (07) 3343 9522 or (07) 5446 1745 or through our contact us service here.