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  • Zasco van Rooyen

What happens when you die without a valid Will?

If you die without a Will or a valid Will – the laws of intestacy as found in Part 3 of the Succession Act 1981 applies. These rules set out the entitlements of the next of kin of a person who died without a last Will and Testament or a Will that is not valid.

The intestacy rules determine the distribution of the deceased estate to the next of kin such as a spouse, de facto partner and children or grandchildren.

No Spouse Or Children

If there is no spouse or children then provision is made for parents, brothers and sisters, nephews and nieces, then grandparents, then uncles, aunts and cousins.

There is no provision made in the intestacy rules for distribution of the estate to relatives more remote than first cousins.

In-laws (brothers, sisters, mother or father) are not classified as next of kin and are not included in the intestacy rules. The same applies to a step-parent.

A Valid Will Is A Necessity

The best way to ensure your estate is distributed to who you would like to benefit from it, is to make a valid Will and keep it up to date.

Usually a testator appoints an executor in his or her Will. When a person died without a Will there is no appointed executor. This void is filled by someone who needs to stand up and take responsibility to finalise the estate of the person who died without a Will. This person is called an Administrator rather than an Executor.

From the outset an Administrator does not have authority to deal with the estate of a person who died without a Will until the Supreme Court of Queensland grants them Letters of Administration.

Generally financial institutions who hold assets belonging to a person who died without a Will, will not release those assets without being presented with Letters of Administration from the Supreme Court.

To be appointed as an Administrator the person needs to convince the Supreme Court that the applicant is the appropriate person to administer the estate.

The Supreme Court may grant letters of administration where a person died without a Will to any of the following fit and proper persons: –

surviving spouse (including a de facto partner) children grandchildren or great grand children parents brothers and sisters children of brothers and sisters grand parents uncles and aunts first cousins anyone else the court may appoint

How To Get A Will

Best is to ensure that your Last Will and Testament is valid, up to date in accordance with your wishes to avoid any benefit going to someone that you never intended it to go to and to avoid any frustration to your surviving next of kin in the finalisation of your estate.

The lawyers at Baldwins Lawyers can assist you in the process to ensure that there will be no problem with your estate.

Call us on 07 5482 1733 or email us on to make an appointment to discuss your estate planning. We assist clients across Queensland and New South Wales with their estate planning.

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