What happens if someone dies without a will?

There is no right or wrong time or age for someone to organise their will. However, life is unpredictable – and if the unexpected occurs, your loved ones may not be taken care of as you had hoped.


For this reason, having a will provides peace of mind for the asset-holder and their intended beneficiaries. If you die without making a valid will, you leave what is known as an “intestacy”. This means you have not validly disposed of some or all of your assets.


Why you need a Will

Having a will is one of the most important things you can do for yourself and your family. It will legally protect your spouse, children, and assets. It can also protect your children’s inheritance from being taken in a divorce or bankruptcy situation. A Will can help your loved ones avoid a lengthy administration process and ensure your estate does not pass to someone you do not intend to benefit.

Research by comparethemarket.com.au reveals that many Aussies don’t have a will, including nearly half of Aussie mortgagors. Among under-40s who have a will, they are most likely to organise one when purchasing a property. In contrast, the majority of over-50s say they took out a will once they married or had kids.


Each state in Australia has different laws around wills and how assets are distributed when there is no will in place. In Queensland, the intestacy laws of the state will determine how your estate assets will be distributed upon your death. This includes real estate, bank accounts, securities, shareholdings, and other assets that you own at the time of your death.


If you die without a will, your assets will be distributed according to a legal formula. This might mean that your assets do not end up with the person you would have chosen. It also means that you have no control over who distributes your assets.


Single with no children

If you are single and childless, your parents stand to inherit your entire estate if they are both alive. This applies whether your parents are divorced or still together. If one parent has already died, the surviving parent stands to inherit the entire estate.

If you have no surviving parents, then your siblings will inherit your entire estate in equal parts. If one of your siblings has predeceased you and had children, that siblings share will go to their children.

If you have no surviving parents, siblings, or nieces and nephews, then your estate will be divided between your relatives of your mother’s side and the relatives on your father’s side.


Single with children

If you are single with children, then your children will inherit your estate in equal shares. If one of your children has died before you and they have children, then his or her share will pass to those children (your grandchildren).


Married with no children

If you are married with no children or no children surviving, then the spouse or civil partner takes the whole of the residuary estate.


Married with children

If you are married with children, the spouse or civil partner receives the first $150,000.00 of the estate and all household chattels. The remainder of the estate is then split between the surviving spouse and your children.


De Facto couples

A de facto spouse is now granted the same entitlement as a spouse or civil or registered partner where there is no Will. However, once the de facto status is lost by separation, then there is no entitlement on intestacy. A separated spouse or civil or registered partner can still be entitled on intestacy until and unless there is a divorce or termination of the civil partnership or registered relationship.


When there is a Spouse and also a De Facto Spouse

It is possible for there to be both a spouse and a de facto spouse, so the intestacy laws provide for such circumstances. The total amount of entitlement does not change, which means if there are children of the spouse, the amount they stand to inherit will be no different.


There are three ways to divide the spousal entitlement between the spouse and the de facto spouse:

  • The spouse and de facto spouse may make a written distribution agreement;
  • The court may make a distribution order; or
  • Distribution in shares is made by a personal representative.


If you apply to the court for a distribution order, the court may order that the entitlement be distributed in such a manner as is considered just and equitable and may attach conditions. This is concerning for the parties as there is no assumption of equal distribution as a starting point, and the court may decide to distribute solely to one of the parties and not the other.


The most effective way to protect yourself is ensuring your spouse or de facto spouse and yourself both have a Will detailing your exact wishes for how your assets are to be distributed upon your death. Appointing an Enduring Power of Attorney is also very important and should be made at the same time as you are making your Will to protect yourself and your family and is valid prior to death. Once the death occurs, the Executor/s of your Will look after your affairs.


Contact us if you need assistance.