How is the estate split between family members?

When a person passes away, their estate—consisting of property, money, and other assets—is distributed according to the terms of their will. If there’s no valid will (intestacy), or if the will doesn’t cover all aspects of the estate, then intestacy laws apply. Understanding how the estate is split between family members helps clarify what relatives may inherit and in what proportions.

Key Definitions and Context
• Intestacy: Occurs when there is no valid will, or certain assets aren’t covered by an existing will.
• Jurisdiction Variations: The rules for splitting an estate differ between Australian states and territories. In Queensland, these rules are governed by the Succession Act 1981 (Qld). Where the deceased was domiciled (their permanent home) generally determines which jurisdiction’s laws apply.
• Spouse and Children: Typically, spouses (including de facto or registered partners, and same-sex partners if recognised by law) and children have priority in the distribution formula.

(For detailed guidance, visit the Queensland Government – Wills & Estates website and consider reviewing the Succession Act 1981 (Qld).)

Understanding the Core Concept
Intestacy laws set out a structured hierarchy of who inherits first and in what proportions. The appointed administrator doesn’t have free rein to decide how to split the estate; they must follow a statutory formula laid out by the state. This ensures a predictable, legally binding distribution—even though it may not reflect the deceased’s personal wishes.

Typical Order of Inheritance
While details vary by jurisdiction, a common order of inheritance under intestacy laws often resembles the following:

• Spouse (or de facto / registered partner): Usually receives the largest share.
• Children: If children exist, they generally inherit after the spouse’s entitlement is met. The exact split depends on local laws and the size of the estate.
• No Spouse or Children: The estate may pass to parents, siblings, nieces, nephews, or more distant relatives according to a set order of kinship.
• No Surviving Relatives: If no eligible relatives are found, the estate may ultimately pass to the state.

Specific Distributions in Queensland
In Queensland, the Succession Act 1981 (Qld) provides a more detailed formula:

• If the deceased leaves a spouse and children, the spouse receives the first $150,000 of the estate.
• After that initial amount, the remainder of the estate (often called the residue) is divided according to how many children survive:
  • One Child: The spouse receives half of the residue, and the child receives the other half.
  • More than One Child: The spouse receives one third of the residue, and the children share the remaining two thirds equally.
• If there is no spouse or children, the estate generally goes to the parents of the deceased, or further down the list of kin if the parents are not alive.

Roles and Responsibilities
• Administrator: When intestacy rules apply, an administrator (appointed by the Supreme Court through Letters of Administration) must follow these statutory figures. They identify and collect assets, settle debts, and distribute what’s left according to the legal formula.
• Beneficiaries: Family members who inherit may need to provide identification and banking details. They do not need to apply for grants but must wait until the administrator finalises valuations, settles debts, and completes all legal requirements.

Step-by-Step Process in Determining Shares

1. Identify the applicable laws based on the deceased’s domicile.
2. Determine who survives the deceased (spouse, children, other relatives).
3. Value the estate’s assets and liabilities (property, bank accounts, superannuation, personal belongings, debts, taxes).
4. Apply the intestacy formula. In Queensland, this includes the spouse’s statutory amount and the shares for children if any.
5. Settle debts and funeral costs before distribution.
6. Allocate remaining assets to beneficiaries according to the statutory formula, potentially selling assets for a fair division.

Common Questions (FAQ)

How do I know exactly what share I’ll receive?
Check the laws in the relevant state or territory and consider seeking professional legal advice. In Queensland, the spouse’s $150,000 entitlement plus their share of the residue is clearly defined by the Succession Act 1981 (Qld).

What if I believe the distribution is unfair?
If you feel you’ve been left out or inadequately provided for, you may have the right to contest the distribution (e.g., a family provision application). Seeking legal advice early can help.

Can family members agree to a different distribution?
Yes, sometimes beneficiaries can negotiate and sign a deed of family arrangement to alter the standard distribution. Legal guidance is recommended to ensure everyone agrees and the variation is enforceable.

Are superannuation and joint assets included?
Not always. Superannuation death benefits and jointly owned assets may bypass intestacy laws, passing directly to the surviving joint owner or nominated beneficiaries. Check the specific terms of the superannuation fund and asset ownership structures.

Practical Scenarios and Examples
• Scenario 1 (Spouse and Children): If a spouse and two children survive, the spouse first receives $150,000. The remainder is then divided so the spouse gets one third and the children share two thirds equally.
• Scenario 2 (No Spouse, With Children): If there’s no spouse, children commonly inherit the entire estate, divided equally.
• Scenario 3 (No Spouse or Children): Assets flow up to parents or across to siblings and other kin according to the set order.

Who Can Help?
• Estate Lawyers: Professionals like QLD Estate Lawyers (QEL) can clarify entitlements and guide you through the process.
• Public Trustee Queensland (https://www.pt.qld.gov.au/): Can administer estates where no suitable family member is available.
• Accountants & Financial Advisors: Assist with tax implications and planning strategies if you’re anticipating an inheritance.
• Real Estate Agents & Valuers: Help determine property values if assets need to be sold for fair division.

Additional Resources
• Queensland Government – Wills & Estates website
• Supreme Court of Queensland: https://www.courts.qld.gov.au/courts/supreme-court
• Succession Act 1981 (Qld): https://www.legislation.qld.gov.au/view/html/inforce/current/act-1981-069

By incorporating these specific figures and requirements, family members can better understand their likely entitlements and prepare for the practical steps involved, making the distribution process under intestacy clearer and more predictable.