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What Happens to Your Estate if You Die Without a Will in Queensland

What if I die without a Will in Queensland

Those who die without a will die ‘intestate’, which simply means they died ‘without having made a will’.

The consequences of dying intestate can be significant even (and probably more so) for those who believe they ‘don’t have much to give’.

The intestacy rules in Queensland were updated in the 90s and aren’t new. They might even be considered fair by many people. But these rules work best as emergency cover: they work, and they work well within the confines of their purpose. But they should never be used, by anyone: ever.

And that is because having a properly considered estate plan including a lawyer drafted will always provide a better outcome for your loved ones, and in many cases may save them thousands of dollars, especially with smaller estates. That is, your estate will save more than the cost of a properly crafted lawyer drafted will.

Administering an Intestate Estate

For those with smaller estates, a lawyer drafted will is even more important. It can avoid an estate being required to obtain a grant of probate. It avoids arguments over who will administer the estate, and who has the right to deal with the property of the deceased, or to make funeral arrangements.

For those dying intestate, banks will not release accounts to the family without a grant of Letters of Administration. That requires the essentially the same process as applying for a grant of probate, except there is no will. So it has out of pocket expenses of about $1,000 even if you do the application yourself and don’t hire a Probate Lawyer to assist. Fees that could have been spent on getting a properly drafted will which would have avoided the stress and delay associated with intestacy.

The more complex your circumstances, the more need for a lawyer drafted will.

Case Study: John & Jane

John died intestate and is survived by Jane, his De Facto of 20 years, Susan, his ex-wife from whom he was never divorced, his 2 adult children from his marriage, and his 3 adult step-children from his de-facto relationship. It is not difficult to imagine a family dispute occurring because there is no will. His estate is a one-half interest (tenants-in-common) in his home with Jane, together with $300,000 of super, personal effects, and a 10 year old car registered in his name which was used solely by Jane. He had $2,500 of shares held solely. He held a joint account with Jane, and an account in his own name which had $5,000.

Intestacy Outcome

The first issue is that until a grant of administration is made, all of John’s property vests in the Public Trustee.

Jane and Susan each have priority to apply to be the Legal Personal Representative. If there is an argument between them, an independent administrator will be appointed by the court (at significant cost to the estate).

Each of Jane & Susan are surviving spouses, and will share $150,000 & the household chattels, and share one-third of the residue.

If Jane & Susan are amicable, this can be achieved easily with a distribution agreement; but it is just as likely that there will not be agreement.

The remaining two-thirds of the residue will be divided between all 5 children, because step-children are included as children.

Susan would like her share of the residue now. While Jane has the right to elect to acquire John’s interest in the home, she must acquire it at value, so she must determine what the market value is and fund that herself - if she cannot acquire the interest at market value, the property has to be sold.

Even if Susan and the children agree to Jane remaining in the home, there are other considerations to think about…

  • Each beneficiary will acquire an interest in the property, which may affect stamp duty concessions or land tax in the future

  • None of the beneficiaries will live in the property, so it will not be their principal place of residence: cue Capital Gains Tax

  • The rates will be more expensive - should Jane pay the additional rates?

  • There are insurance issues, capital expenses, ongoing maintenance…

I haven’t even considered the consequences of the Super Fund not paying the proceeds to the estate, which cannot be assumed.

If they are paid directly to Jane as John’s only financial dependent… they won’t form part of the estate and well, cue the family dispute.


Even if there is full agreement and everyone works together, there are significant consequences to dying intestate even with a small estate.

John’s legal personal representative must obtain a Grant of Letters of Administration costing several thousand dollars. Then they will need to deal with obtaining the agreement of all beneficiaries on how long to permit Jane to reside in the home, how the ongoing costs will be paid, and who is to pay what if something goes wrong. And what if there is agreement believing Jane might stay for only 2 years, but after 10 years… everyone is now a little less accommodating.

The consequences increase if any of the beneficiaries become bankrupt or otherwise need the funds before Jane is wanting to move out. And of course, the estate is small so if there is agreement, it is likely that they will want to save the costs of having a lawyer draft the agreement.

The additional costs of administering this estate (even without a family dispute) would be more been more expensive than the cost of our couple’s Will package would have addressed all of the issues involved. And we haven’t considered the issues which may arise when Jane dies… issues which would also have been addressed within the same couples estate planning sessions. With a dispute thrown into the mix, the additional costs would dwarf the costs of having a properly considered estate plan crafted.

If they don’t get proper tax advice, the additional costs may amount to tens of thousands of dollars in tax or loss of the ability to claim future stamp duty concessions.

What if there had been a Will

A lawyer drafted Will can navigate these issues easily by incorporating a right of residence, binding death benefit nomination, the potential exclusion of adult step children (or all children until both spouses die).

A properly crafted estate plan might incorporate Testamentary Trusts with Jane as a primary beneficiary to ensure she could benefit and still protect the assets if she were to re-partner.

Even the most basic will would have named an executor and likely avoided the need to obtain probate given the size of the estate, though it would not have dealt with Jane remaining in the home unless this was discussed and incorporated into a more complex will. These issues would have been discussed during our standard estate planning sessions where we gain an understanding of who you are as a couple, how you operate, and what is important for each of you if you were to pass away unexpectedly.

For added protection and peace of mind, we might also discuss binding each spouse to that plan with a Deed of Mutual Wills, which prevents changes to key clauses in a will after the death or incapacity of a spouse.

This applies to you

Every adult in Queensland should have a will, whether you are 18 with no children, or the millionaire CEO of a business with children from 3 different relationships.

The cost of a considered Estate Plan is significantly cheaper than it was 10 years ago.

The cost of not having a lawyer drafted will can be significantly more expensive than it have ever been. Especially with the property boom over the last 2 years. Even if you don’t own property, you probably have superannuation, and death benefits which go with it.

Our Estate Planning team deals not only with drafting standard wills, but also deals with blended families and complex financial arrangements. Our team also has significant experience in dealing with the family disputes which arise due, especially where family members sense unfairness.

Call us today

Our team can provide a free initial 15 minute phone call to discuss your needs. If you would like to make an appointment or receive our fixed fee succession packages, please enter your email below.

Our Will packages are all fixed fee so you know what your outlays will be when you sign up.

We offer a payment plan so that you can pay instalments towards your fixed fee package to help spread the cost.


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