Dying without a Will – how the estate is divided up
“You may think that because you have a spouse and kids, that your spouse will get everything, and they will take care of your kids… wrong”
When you die without a valid Will you are said to have died intestate. ‘Intestate’ is a Latin word which means one who dies without a Will.
That means that the State will decide who gets what out of your estate and you nor your family will have a say.
You may think that even though you don’t have a valid Will, because you have a spouse and kids, that your spouse will get everything, and they will take care of your kids… wrong.
The Succession Act in Qld will specifically states who is to get what our of your estate and it goes something like this (it’s listed out in a schedule to the back of the Act and is at first glance confusing)
You have 1 spouse and no children, then yes, your spouse will get everything.
If you have more than 1 spouse*, then:
There can be an agreement or an Order about how to divide the estate; or
The Executor can equally distribute it to the spouses.
If there is 1 spouse and children** then the spouse is to receive:
$150,000 and the household chattels (i.e. furniture); and
If:
- 1 child (or that child has died leaving a child – so your grandchild) – then the spouse is to receive half; and
- Otherwise – 1/3 (i.e. the spouse gets 1/3rd of the estate and the remaining children get an equal portion of the remaining 2/3rds – so if there are 3 children, the 3 children share that 2/3rds remaining)
If there are more than 1 spouse* and children, then:
The spouses will equally share the $150,000 and household chattels;
If:
- 1 child (or that child has died leaving a child – so your grandchild) – then the spouse is to receive half; and
- Otherwise – 1/3 (i.e. the spouse gets 1/3rd of the estate and the remaining children get an equal portion of the remaining 2/3rds – so if there are 3 children, the 3 children share that 2/3rds remaining)
If no spouse, but children, then the children will get the estate in equal shares
If no spouse and no children, then the parents and if more than 1 then in equal shares
If no spouse, no children and no parents, then their next of kin (i.e. siblings)
If no spouse, no children, no parents, no next of kin – then the Crown i.e. State receive everything.
As you can see, it is not the case that your spouse will automatically receive everything – especially if there are children. The state distribution is convoluted and is not what a person would usually want to happen.
That is why a Will and proper estate planning is so important – you will be able to provide for who you want to receive your estate.
* when could there be more than 1 spouse? If you are married or in a de facto relationship or civil partnership and you have a dependent former spouse (can be divorced or a terminated civil partnership, and not remarried or entered into a civil partnership and was receiving or entitled to receive maintenance from you.
** the legislation refers to children an ‘issue’ (legit legal word for them) - whose child hasn’t been an issue one time or another – but we still love them!
You’re working hard for your money so make sure its properly protected. Proper estate documents are an insurance plan that ensure your family and your assets are safe. If you need Succession Planning advice, have some Estate documents in place and would like them reviewed for free or simply want more info, come and see us.
