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What is intestacy?

Intestate is when a person dies without leaving behind a will.

In Queensland an intestacy arises when a person dies but does not leave behind a valid will or does not effectively dispose of their property in the will.

Provisions for how assets are to be divided under state law are laid out in Part 3 of the Succession Act 1981. Distribution of the estate is passed on through next of kin. The immediate next of kin can be a spouse, a de facto partner or children and grandchildren.

Distribution

If the deceased person does not have a spouse, partner or children then the next of kin will be parents, siblings and other family members. The family tree is traced back as far as first cousins in order to distribute the assets. Step-parents and in laws are not considered next of kin under the act. 

If the deceased person had more than one spouse who may be entitled to a share of their estate then a distribution agreement may be drafted by the spouses, or the court may grant a distribution order about the entitlement of the spouses. 

If the estate is distributed in part or in full to the child or children of the deceased person then it is divided equally. If there is only one child, they are solely entitled to the assets.

Grant of administration

In order to deal with the estate the the next of kin will need to apply to the Queensland Court for a letters of administration. This is a similar process to applying for a grant of probate (this is permission given by the Queensland Supreme Court to administer an estate), except a will does not need to be submitted with the application. 

Estate planning and writing a valid will is the best way to make sure your assets are divided to loved ones as would like them to be. If you would like to contest a case of intestacy talk to a lawyer about what the process entails.