If you die without a valid will in Queensland, your estate is distributed under a formula in the Succession Act. That formula does not know about your blended family, the child who cared for you, or the business partner who needs continuity.
What happens without a will
Dying without a valid will is called dying intestate. The estate is then divided under a statutory order of priority — spouse first, then children, then parents, then siblings, and so on. Where there is both a spouse and children, the estate is split between them in fixed proportions. Nobody exercises judgment about what would have been fair.
Two practical consequences follow. First, somebody has to apply to the court for letters of administration before the estate can be dealt with at all, which adds months and cost. Second, a de facto partner may have to prove the relationship existed, at exactly the moment that is hardest to do.
Four decisions a will lets you make
Who receives what. You choose the beneficiaries and the shares. You can leave specific items to specific people, and you can explain the reasoning in a separate statement.
Who administers the estate. Your executor is a person you trust, appointed by you, rather than whoever applies to the court first. Choose someone organised, and name a substitute in case they cannot act.
Who cares for your children. You can nominate guardians for children under 18. The court is not bound by the nomination, but it carries real weight.
How the gift is protected. A testamentary trust can hold a beneficiary's share rather than paying it out — useful where a beneficiary is young, has a disability, is facing a relationship breakdown, or is exposed to creditors.
What a will does not control
This surprises most people. Several significant assets pass outside the estate entirely:
- Superannuation — generally not an estate asset. It is paid at the trustee's discretion unless you have a valid binding death benefit nomination, and most nominations lapse after three years.
- Jointly owned property held as joint tenants — passes automatically to the surviving owner, regardless of what the will says. Property held as tenants in common does form part of the estate.
- Life insurance with a nominated beneficiary — paid directly to that person.
- Assets held in a family trust or company — owned by the trust or company, not by you. What passes is control, through the trust deed or the shares.
An estate plan that ignores these is only half a plan.
Family provision claims
A will can be challenged. In Queensland, an eligible person — a spouse, child, or in some cases a dependant — may apply for further provision from the estate if adequate provision was not made for their proper maintenance and support. The time limits are short: notice of an intended claim must generally be given to the executor within six months of the date of death, and the application filed within nine months. Executors should not distribute the estate until that window has closed.
You cannot make a will completely claim-proof. You can make one that is far harder to disturb, by documenting the reasons for an unequal distribution at the time you make it.
When to review your will
Review it after any of these:
- Marriage — which generally revokes an existing will unless it was made in contemplation of that marriage
- Divorce or separation — divorce affects gifts to a former spouse; separation alone often does not
- The birth of a child or grandchild
- Buying or selling a significant asset, or starting a business
- The death or incapacity of an executor or beneficiary
- Moving to or from another state or country
Two documents to sign at the same time
A will only operates after death. Two others operate while you are alive and matter just as much: an enduring power of attorney, which lets someone you choose manage your financial and personal affairs if you lose capacity, and an advance health directive, which records your wishes about medical treatment. Without them, an application to QCAT may be needed to appoint a decision maker.
General information only. This article describes the law in general terms and is not legal advice for your situation. Time limits are strict and the law changes. Call BNE Lawyers on 0423 007 888 to discuss your own circumstances in English or Vietnamese.