The effect of dying without a valid will is not widely known.

In Queensland, a person who dies without a valid will dies "intestate". This means that before their property can be dealt with, the Supreme Court must appoint a Personal Representative of the estate. They will be responsible for gathering in assets of the deceased, paying debts and distributing the balance.

The Succession Act sets out who is entitled to receive the intestate’s property.

Where there is a spouse (including a defacto), but no children, the spouse takes all the property.

If there is a spouse and children, the spouse receives $150,000, the household contents and:

(a) 1/2 of the remaining property if there is 1 child, or
(b) 1/3 of the remaining property if there are 2 or more children.

The children take the remaining 1/2 or 2/3 as the case may be.

If there is both a spouse and defacto spouse they share the spouse entitlement.

Where there is no spouse or children the estate is distributed in the following order:

1. deceased’s parents
2. if no parents, to deceased’s brothers and sisters (or their children)
3. if no brothers, sisters, nephews or nieces, to deceased’s grandparents
4. if no grandparents, to deceased’s uncles and aunts (or their children)
5. if no uncles, aunts or first cousins, to the Queensland Government.

In-laws and step-parents are not included.

Having a will allows you to leave your property to the persons you want it to go to and can reduce the costs of administering your estate.

You must make sure the will have you have is valid. This means extra care needs to be taken if writing your own will, or using a DIY kit from the newsagent.

A subsequent marriage will revoke any former will you have made. Divorce will revoke a will to the extent that property is left to your former spouse.

Additionally, pins or staple holes, impressions from paperclips or other marks or tears on a will can render a will invalid.

Finally, a will can only be referred to if it is able to be located. Wills lying around the house should be relocated to a fireproof location and your executors should be informed where it is stored. You could also keep a small card in your wallet/purse indicating where your will is kept.

Inviting your questions and comments...


Michelle Lember
Partner
Lember And Williams

your team. the LAW team.

May I ask a question on the subject of wills - if my partner or I die without a will, then wouldn't our property go to one of us - when we bought the land we chose to own the land 'half' and half' like if we were married (although we are not).

My partner has a child (not mine), if we both died - would they get the property?

We best get Wills drawn up asap!

In relation to jointly owned land, it is either owned as "tenants in common" (each person owns a share whether an equal share (1/2 and 1/1) or, say 1/4 and 3/4) or "joint tenants".

Where land is owned as tenants in common, each person's specific share will be dealt with in the course of dealing with that person's deceased estate. If there is a will, it will pass according to the terms of the will. If no will, according to the rules of intestacy (above).

Where land is owned as joint tenants, (the common form of ownership for couples) then upon the death of one of the joint owners, that person's "share" will pass to the surviving co-owner and will not form part of the deceased estate.

When a couple die together, it is often medically possible to determine who passed away first. If it isn't, there is a presumption of survivorship whereby the eldest person is deemed to have passed away first.

Therefore, the property will be wholly owned by the actual or deemed survivor of the two joint tenants and will then be dealt with as part of that person's estate either according to their will or the rules of intestacy.

It is important to note that a joint tenancy can always be severed at any time. So a property initially owned as joint tenants can convert fairly easily to tenants in common.

A will is certainly a worthwhile investment for any person.

Regards

Michelle Lember
Partner
Lember And Williams

your team. the LAW team.