In the circumstance of a person dying without a Will, they are said to die intestate; therefore, the Estate is administered in accordance with the rules of intestacy as directed by the Succession Act 1981 (Qld) (the Act) (applicable to Queensland Estates only – different provisions apply in other states and territories).

The assets your spouse automatically receives

The intestate Estate is dealt with in accordance with the rules of intestacy; however, such administration is limited to the assets forming part of the Estate. Assets falling outside of the Estate may be dealt with differently.

For example, assets held as by you as joint tenants with your spouse (or another person) will automatically transfer to the survivor upon your death, in accordance with the principles of survivorship. In this instance, the asset falls outside of the Estate and is not subject to the rules of intestacy. However, if the asset is held by you you’re your spouse (or another person) as tenants in common, your interest forms part of the Estate and is dealt with as part of the Estate administration.

Further, non-Estate assets (such as superannuation and trust interests) are subject to distribution by the Trustee of the relevant Fund or Trust and, therefore, may also be distributed outside of the Estate.

Distribution on intestacy

In relation to the assets forming part of the Estate, section 35 of the Act provides that an intestate Estate is to be distributed to the persons entitled to take an interest in accordance with Schedule 2 of the Act.

In the event that you are survived by a spouse (and only one spouse), and you do not have any children, the spouse will be entitled to receive the whole Estate.

In the event that you are survived by a spouse (and only one spouse) and you have children, then your spouse is entitled to receive the sum of $150,000 and the household chattels. The balance of the Estate is then distributed as follows:

  1. If there is only one child, ½ of the residuary Estate is distributed to the child and the balance is distributed to the spouse; and
  2. If there is more than one child, 1/3 of the residuary Estate is distributed to the spouse and the balance is distributed equally between the children.

In order to ensure that your Estate is distributed as you intend (rather than in accordance with legislation, as currently set out above but is subject to change), the best practice is to ensure that you have a Will in place directing the distribution of your Estate.

If you would like to discuss implementing an Estate Plan, please contact our team on 07 5574 3560 or info@nautiluslaw.com.au.