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Intestate Estates In Brisbane

When someone passes away in Brisbane, they either leave testamentary wishes for the disposal of their deceased estate in the form of a last will, or they die “intestate”. Intestate comes from the Latin word intestatus, meaning the person has not left a valid will. In Brisbane, an intestate estate is handled according to the rules set out in the Succession Act 1981. These statutory rules provide guidelines for who can inherit the assets of the deceased when there is no will. Unfortunately, these rules may not be consistent with how the deceased would have wished to bequeath their estate. This article explains what happens to intestate estates in Brisbane. 

Dying Intestate In Brisbane

As people reach adulthood, they often start planning for the future, including for after their death. The birth of children can prompt a parent to make arrangements for the child’s care and security in the event that the parent passes away unexpectedly. However, many people are reluctant to consider their own mortality, or think that they do not really need to start estate planning until some time in the future. Unfortunately, when the unforeseen happens, this can leave grieving family members with the difficult task of administrating an intestate estate. Another unfortunate consequence of intestacy is that, when a deceased has left no last instructions, family members can find themselves in acrimonious and prolonged legal battles, fighting over shares of the estate.

Partially Intestate Estates In Brisbane

A person might feel confident that they have prepared their will, without realising that they are actually partially intestate. This happens when someone has a will, but fails to regularly update the document and neglects to make provision for specific assets of the estate. A testator needs to review his or her will habitually and particularly after any major purchase or significant life event such as a marriage, divorce, birth of a child, or death of a beneficiary or executor.

In Brisbane, the act of marriage revokes any pre-existing will unless the testator prepared the document in contemplation of the union. The law assumes that after a marriage, the spouses will merge their assets and any previous testamentary intentions are redundant. A testator needs to update their will after marrying to ensure that their beneficiaries are not inadvertently disinherited. 

Administering Intestate Estates In Brisbane

When a loved one passes away in Brisbane and leaves an intestate estate, someone will have to apply to the Supreme Court of Queensland for Letters of Administration. A grant of Letters of Administration is similar to a Grant of Probate in that it authorises the applicant to administrate the deceased estate, but differs because the administrator is guided by legislative rules rather than the wishes of the deceased. It is often a family member, such as a spouse or child, who makes the application, but the family can ask a professional to act for them, and even a creditor of the estate is eligible to make an application.

Brisbane Laws Of Intestacy And Succession

Intestacy law dictates that certain people related to the deceased inherit in a specific order of priority. In Brisbane, the de facto partner or spouse of the deceased is entitled to inherit the whole intestate estate unless the deceased also had surviving children. When the deceased had both spouse and children, the spouse inherits all the household belongings, the first $150,000 of the estate, and a further third of the residual estate. The other two-thirds of the residual estate is divided among the deceased’s children. Children have the right to inherit equally if their parent died without a surviving spouse. Alternatively, if an intestate person has no spouse or children, their parents will inherit the estate, or the siblings will inherit if the parents are already deceased.

De Facto And Estranged Spouses

One of the reasons why it is so important to regularly update testamentary provision is to account for developments or changes to relationship status. While divorce revokes provision for a spouse in a will, a separated spouse is still legally married and entitled to inherit a spouse’s share of an intestate estate.

A de facto partner is also entitled to inherit a spouse’s share of an intestate estate if they can establish that their relationship qualifies according to the legal definition. A partner must prove that the relationship was either registered in Brisbane, or that he or she lived with the deceased on a genuine domestic basis in the two years prior to death. The Supreme Court will make an assessment on de facto status based on factors including the length of the relationship, and whether the couple shared commitment, children, a residence, finances and a sexual relationship.

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Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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