What Happens if Someone Dies Without a Will?

Have you ever wondered what happens when a loved one passes away without creating a will? Dying without a will (known as dying “intestate”) can create a tricky situation, and it’s generally not as simple as just splitting their estate neatly in parts for each relative.

So what’s the process when someone dies intestate? We’ve outlined what you can expect if a family member passes without making their wishes known.

Who handles the estate when someone dies without a will?

When someone passes away without a will, their estate needs an administrator – that is, someone to handle the logistics of dealing with assets, settling debts, and distributing any benefits to the family of the deceased.Elderly couple dealing with estate administration duties

What is the difference between an estate administrator and an executor?

This estate administrator will have a very similar role to an executor. The point of difference is an executor is nominated by a person with a valid will, whereas an administrator has applied for the role and been approved by a court when a person dies intestate. Learn all about the executor’s role in our comprehensive estate executor’s guide.

How do you apply for a letter of administration?

A family member may apply to the Supreme Court for “Letters of Administration”. If granted, that person becomes the administrator of the estate.

There is a predetermined order of relatives who may apply to the court to be granted authority to administer an estate:

  1. Surviving spouse (including a de facto partner)
  2. Children
  3. Grandchildren or great grandchildren
  4. Parents
  5. Brothers and sisters
  6. Children of brothers and sisters
  7. Grandparents
  8. Uncles and aunts
  9. First cousins
  10. Anyone else the court may appoint

To apply, you will generally need to engage a professional to help gather documentation and lodge the application.

The Queensland Courts website outlines the steps involved, and they are similar to applying for a grant of probate, except the applicant needs not provide a copy of the will.

These steps are:

  1. Advertising your intention to apply.
  2. Give a copy of your notice to the Public Trustee.
  3. Give others time to object to your intention to apply.
  4. Prepare your documents.
  5. File with the Supreme Court.

How is the estate split between family members?

The administrator doesn’t get free rein to split the estate as they see fit – they must abide by figures set by the state.

Property in the sole name of the deceased (or their share of assets co-owned other than as “joint tenants”) must be distributed to a spouse and children. If there is no spouse or children, they generally go to the parents of the person who passed away or to others down the list of kin.

In Queensland, the spouse receives the first $150,000, plus one third of the residue where there is more than one child. If there is only one child, though, the spouse gets half of what’s left. The surviving child or children share in the remaining half or two thirds of the amount left over.

Is it possible to dispute the split of the estate when someone dies intestate?

When someone dies with a valid will in place, it’s possible to dispute your share based on greater need. This is based on the idea that a deceased estate needs to adequately provide for family members. A greater need might come about because of age, employment situation, or family requirements.

You can make this same request when someone dies without a will. To formally ask for a greater share based on your needs, you can make what is called a “Family Provision Application”. One of these applications can also be made on the behalf of someone else, for example, if the person is underage.

Not just any family member is entitled to consideration for a Family Provision Application. The only people who may apply are spouses, children, or dependants.

For the application to be successful, the applicant must show that “adequate provision” has not been made from the estate for the applicant’s “proper maintenance and support”.

Who can help with estate administration?

Specialised estate lawyers like QEL can help with everything from applying for letters of administration through to administering the estate. You can also turn to the Public Trustee, who assist with these types of matters for a fee.

For more information on what to do when someone dies without a will, contact us online or give our friendly team a call on 1300 580 413.