What happens when a person dies without making a will, and how is the estate of the deceased person distributed?
This is a very good question and highlights the need to have a valid and binding will so that upon your death, the assets that form your estate go to the people you want them to go to.
“Intestacy” is defined in the Queensland Succession Act as meaning a person who dies and either does not leave a will, or leaves a will but does not dispose effectively by will of the whole or part of his or her property.
Firstly, an application will need to be made to the court by the surviving spouse or children seeking an Order that the estate be distributed in accordance with the intestacy rules.
Generally speaking (there are some other specific nuances in this area) the intestacy rules are as follows:
1: Intestate survived by a spouse only;
The spouse receives the whole of the estate.
2: Intestate survived by spouse and children;
The spouse receives a base of entitlement of $150,000.00 and the household chattels.
After this amount is allocated then the spouse receives an additional one half (1 ½) or one third (1 1/3) of the remainder of the estate and the children share the other two (2) thirds.
3: When the intestate is survived by children only;
If there are surviving children, they are entitled to the whole of the estate in equal shares.
4: When the intestate is not survived by either a spouse or children;
If there is no surviving spouse or children then those entitled to the residuary estate are;
- The deceased parents, followed by;
- The next of kin (includes: Siblings, Grandparents, Aunties, Uncles, Nieces, Nephews and First Cousins of the deceased), and then;
- The Government,
It is therefore very important, given the broad definition of “next of kin”, and the fact that your estate could go to the Government, that a properly drafted and signed will is completed.
The Content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances
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