What does it mean if you are intestate?
According to section 5 of the Succession Act 1981 (Qld) (Act), Intestate is defined to mean where a person dies and either does not leave a will, or leaves a will but does not depose of it effectively.
What are the rules of intestacy?
In Queensland, the intestacy rules distribute the estate to the closest next of kin to the deceased. The order is as follows:
(a) spouse and issue (children and/or grandchildren);
If there is no spouse or issue, then:
(d) nephews and nieces;
(f) uncles and aunts;
(g) first cousins; then
(h) the Crown – bona vacantia.
How is an Intestate estate distributed?
- If married with no children, then the whole estate is given to the spouse.
- If married with children, then:
(a) if the value of estate is less than $150,000 excluding household chattels, then the whole estate is given to
(b) if the value exceeds $150,000 excluding household chattels, then the spouse is given the household
chattels, $150,000, and:
(i) if there is only one (1) child: 1/2 of the rest of the estate; or
(ii) if there are two (2) or more children: 1/3 of the rest of the estate; and
(c) the children receive the remainder of the estate.
- If there is only one (1) child and the child survived, the child takes the whole estate.
- If there are two (2) or more children, all of whom survived, they take the whole estate in equal shares.
What is a de facto partner?
De Facto Partner is defined in section 32DA of the Acts Interpretation Act 1954 (Qld) as either one (1) of two (2) persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family. In addition, in accordance to section 5AA of the Act, they must have lived together as a couple on a genuine domestic basis for a continuous period of at least two (2) years ending on the deceased’s death.
Please note that the term De Facto Partner now includes same sex couples as the gender of a partner is no longer relevant.
How Dundas Lawyers can assist
We are often asked as part of commercial transactions, whether we can prepare a Will for completeness. We have therefore created three (3) different classifications for Wills, which are as follows:
(a) Uncomplicated Will
Where the testator has no need for a discretionary testamentary trust or mixed family provisions.
(b) Will with testamentary trust, for dependent children
This type of Will includes a discretionary testamentary trust provision to provide for children of the testator; and
(c) Will with testamentary trust – family line Will
This type of Will includes a discretionary testamentary trust provision to provide for children of the testator but not for the children of a future surviving spouse.
Part of the service we provide in drafting Wills is to ensure that the Estate planning issues are addressed, so that in the event of the death of the testator, the lives of their dependants continue on with minimal interruption.
Each Will however, is as unique as each individual’s individual circumstances. Therefore, care needs to be taken to ensure that the provisions endure over time, and so that none of them fail at the point in time when they are needed.
If you would like us to draft a Will so that your assets are not distributed according to the rules of Intestacy, please contact us for an obligation free discussion.
This article is general in nature and cannot be regarded as legal advice. It is general commentary only. You should not rely on the contents of this article without consulting one of our lawyers. If you would like advice regarding how the law applies to your individual circumstances, then please contact Dundas Lawyers.
Malcolm Burrows B.Bus.,MBA.,LL.B.,GDLP.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013
Facsimile: (07) 3221 0031
Mobile 0419 726 535