Many Chinese families see making a will as something to deal with “when I’m older”. But in Queensland, if you do not make a will, the law effectively decides for you — and the result may be very different from what you would have wanted.
No Will Does Not Mean No One Inherits
If a person dies without a valid will in Queensland, their estate is distributed according to the intestacy rules under Schedule 2 of the Succession Act 1981 (Qld).
Broadly speaking:
- Spouse, but no children: the spouse receives the entire estate.
- Spouse and one child: the spouse receives the household chattels, a statutory legacy and one-half of the remaining estate. The child receives the other half.
- Spouse and two or more children: the spouse receives the household chattels, a statutory legacy and one-third of the remaining estate. The children share the remaining two-thirds.
- Children, but no spouse: the children share the estate equally.
- No spouse or children: the estate passes in order to the parents, then siblings and their children, then grandparents, then aunts and uncles and their children.
- No eligible relatives within the statutory categories: the estate ultimately passes to the State.
The last point is important.
It does not mean that the person has “no relatives at all”. The legislation contains a defined list of relatives who may inherit, and that list has an end. More distant relatives, such as certain cousins, will generally fall outside it.
So the assumption that “there will always be some relative who inherits” is not necessarily correct in Queensland.
There is also a statutory legacy payable to a surviving spouse. In Queensland, that amount has not necessarily kept pace with increases in property values. When a Brisbane home may already be worth several hundred thousand dollars or more, the statutory legacy may represent a much smaller proportion of the estate than many people expect.
Most importantly, these rules do not take into account who you were closest to, who cared for you for ten years, or who helped you build your business.
The law looks primarily at legal relationships and status.
Three Relationship Issues People Commonly Get Wrong
Blended and Second-Marriage Families
If there is a current spouse and children from a previous relationship, the estate will be divided according to the statutory formula.
You may have intended for the house to go to your children and the cash to go to your wife, but unless that arrangement is properly documented, the law does not know that.
De Facto Partners
For succession purposes in Queensland, a “spouse” may include a legally married spouse, an eligible de facto partner and a registered civil partner under the Relationships Act 2011 (Qld).
A de facto partner may need to prove that the relationship existed. Evidence may include the length of time the parties lived together, their financial arrangements and how the relationship was recognised socially.
Without registration or clear written arrangements, a surviving partner may find themselves having to prove the relationship in court at an already difficult time.
Queensland law can become even more complicated where there is both a legally married spouse and a de facto partner. In some circumstances, both may have an entitlement to share the portion allocated to a “spouse”.
This is particularly important for couples who have been separated for years but have never formally divorced.
Family Members Living in China
Where beneficiaries or relatives are based in China, their relationship to the deceased may need to be established through documents such as household registration records, notarised certificates and marriage certificates.
Those documents may then require translation and authentication before they can be relied upon in Australian court proceedings.
The process can easily take several months.
The Process Does Not Start Automatically
If there is no will, there is also no executor appointed by the deceased.
A family member or other eligible person must generally apply to the Supreme Court of Queensland for Letters of Administration so that someone has legal authority to administer the estate.
Questions may arise about who should apply, who is eligible and what happens if several children disagree.
Queensland also requires certain procedural steps before the application can be filed. This includes publishing notice of the intended application and notifying the Public Trustee of Queensland, followed by the applicable waiting period.
That step alone can add weeks to the process.
In the meantime, practical problems can arise.
The property may not be able to be sold. Bank accounts may be frozen. A business may be unable to operate properly because no one has authority to make decisions.
The costs of resolving these issues are ultimately paid from the estate itself.
What Can a Will Do?
A properly prepared will can help you:
- clearly specify who receives which assets, rather than relying on the statutory formula;
- appoint your own executor instead of leaving the appointment to the court;
- record your wishes regarding guardianship of minor children; and
- plan in advance for the administration of assets located across different countries.
A will is not simply a document about who receives your assets.
It is also a way to reduce uncertainty, delay and unnecessary difficulty for the people you leave behind.
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Disclaimer
This article is general information only and does not constitute legal advice under Australian law. For advice specific to your situation, please contact W & G Lawyers. For further details, please click here to view our disclaimer.