What Happens When You Die Without A Will In Australia?

 

You may have wondered what would happen to your assets should you pass away before completing a Will. Some people might feel that their circumstances aren’t that complex and that they shouldn’t need to spell things out in a Will.

 

However, things are not as simple and clear-cut as they would appear to be. Take the example of a married woman with a husband and a child from a former marriage. She might assume that her child would be entitled to a cut of her estate. However, with a will in place, here child would receive nothing, only her spouse. If the spouse were to remarry, potentially the new partner may be entitled to receive everything!

 

Obviously leaving a Will is ideal, as it outlines your wishes clearly and may avoid contesting wills and possible conflict after you have passed. However, in Australia, there are systems put in place to make the process of distributing assets as clear as possible.

 

Who Gets What When You Die Without A Will?

 

First of all, when someone dies without a Will, or there Will fails to make mention of the distribution of their assets, then their assets are distributed according to a set of rules outlined by the Government. The Law differs depending on the state and territory you belong to, but for the most part are fairly similar. For the purposes of this article, we will be referring to Queensland estate law. As good as these laws are, contesting wills may be an issue.

 

Under the Queensland Succession Act, there are four categories that the deceased my fall under. Depending on the family scenario of the deceased, their assets will be divided according to what category the court deems relevant.

 

Obviously this system is not foolproof, as it can be complicated; especially in the case of defacto relationships. This may also get more complicated when there is a child of a former or current defect relationship. Not having a proper will in place means that contesting wills becomes more of a probability.

 

Below we will list the four categories and how the estate is split according to Queensland law should you die without a will and fall under one of them.

 

The Four Categories Under The Succession Act

 

As mentioned above, if you die without a will in Australia then you may fall under one of four categories depending on your circumstances. Depending on the category you are placed in by the courts, then your estate will be divided in the following ways mentioned below.

 

1. You Have A Spouse And Children

 

In this case the spouse will receive the following under Queensland law:

 

(1) $150,000, &

(2) all the household chattels, &

(3) one-half of the remaining assets (if one child), or

(4) one-third of the remaining assets (if more than once child)

 

If there are more than one spouse or defect partner, say in the example of a polyamorous relationship, then the amount will be shared between the partners. However the process of deterring a split can be costly and is taken directly out of the estate.

 

This is another reason why you should prepare a will, as lawyer fees can be extremely costly at this point.

 

The child will receive the following:

 

If one child: The child receives one-half of the remaining assets.

If more than one child: each child receives a share of two-thirds of the remaining assets.

 

2. You Have A Spouse And Are Without Children

 

In this case, the distribution of the estate is quite simple. The spouse is given the entirety of the estate. This may be divided up depending if there is more than one spouse or defect partner as mentioned above.

 

3. No Spouse But Does Have Children

 

In this case the children receive the estate. If there are more than one child then estate is divided evenly. In the case that one of the children is deceased also, then the grandchildren of the testator will receive the share.

 

All pretty clear cut up till this point, right? Well the last category is where things can get a bit messy.

 

4. No Spouse And No Children

 

4.1   If a parent or both parents

 

The parent receives all the assets, or if both parents survive, they receive all the assets in equal shares.

 

4.2   If no parents, but next of kin

 

The next of kin receive all the assets, in the following order:

o   If any brothers or sisters, they share in all the assets, (but if any brother or sister doesn’t survive but had their own children, those nephews &/or niecestake their parents share);

o   If no brothers & sisters (or nephews & nieces), but one or more grandparents, the grandparent receives all the assets or, both grand-parents receive all the assets in equal shares;

o   If no brothers, sisters, nephews, nieces or grand-parents, but one or more uncles or aunts, they share in all the assets (but if any uncle or aunt doesn’t survive but had their own children, those cousins take their parents share). 

4.3   If no parents & no next of kin

The Queensland Government receive all the assets.

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