What is a deceased estate?
A deceased estate refers to the ‘estate’—which is all the things belonging to the person who has passed away. Their estate includes all the things that the person owned (like their house, car, money and personal belongings) and includes any debts or other liabilities they were responsible for.
A Will is the legal document that instructs how the estate should be distributed among the beneficiaries (the people or organisations who are nominated to benefit from the estate).
What to do when someone has died
Firstly, it’s important that you look after yourself at this challenging and emotional time. Connecting with friends or family, your GP or a counsellor is a good place to start if you are finding it hard to cope.
If you need immediate support
Please contact Beyond Blue on 1300 224 636, or Lifeline on 13 11 14.
People and organisations to contact
To help you get things in order, we have prepared a list of people and organisations you may need to contact.
Read the list of people and organisations
Steps for an executor administering a deceased estate
The estate will be administered by the executor(s) nominated in the Will.
Find out about the steps for administering a deceased estate
What if someone dies without a Will?
If you die without a will, it is known as dying ‘intestate’. In this situation where there are no instructions, an estate is managed through a legal process so that your assets are distributed in line with Part 3 of the Succession Act 1981 (the Act).
The Act sets out ‘intestacy’ rules, which means your estate will first go to your next of kin, which is your spouse, your children and grandchildren.
If there is no spouse, children or grandchildren, then the estate goes to your parents, then brothers and sisters, nephews and nieces, then grandparents, then uncles, aunts and cousins. Under intestacy rules, your estate cannot be distributed to relatives more remote than your first cousins. In-laws, stepparents or stepchildren are not considered next of kin and are not included in the rules for the distribution of your estate.
A beneficiary must survive the person who has passed away by at least 30 days to be entitled to share in the estate.
The person who deals with an intestate estate is called the administrator (and acts in the same way as an executor of a Will), and they will be responsible for following the law about who shares in the estate. This includes making sure all debts are paid, assets are collected, tax is finalised and the estate is distributed to the lawful beneficiaries.
Executors, probate and beneficiaries in a deceased estate
An executor is the person(s), or organisation, nominated in your Will to legally administer the Will after you pass away. The things they do can include:
- locating and examining your Will
- obtaining probate from the Supreme Court of Queensland
- locating and notifying beneficiaries
- verifying and protecting assets
- confirming insurance of assets
- collecting valuables and income
- determining debts and liabilities
- preparing tax returns
- obtaining income tax clearances
- transferring assets
- preparing financial statements and distributing the estate.
If you have a Will or are thinking about making one, you can find out more about the executor role and information on choosing an executor.
The executor may need to obtain probate. Probate is a Supreme Court document that recognises that the executor is authorised to deal with the estate of the deceased person. Probate is issued by the Supreme Court of Queensland. The executor lodges certain documentation with the Supreme Court, which examines this documentation. If it is all correct, the Supreme Court will grant probate recognising that the Will provided by the executor is legally valid.
As the executor, you don’t necessarily need to apply for probate, so you should find out whether you need probate before you can carry out the terms of a Will. Probate may be required by organisations controlling assets before they will release them to the executor.
The beneficiaries are the people or organisations named in a Will to benefit, or in other words, receive something from the deceased person’s estate. If you are a beneficiary of a Will, it is likely that you will be contacted by the executor. It’s important to note that there are many steps involved in administering an estate, which means it can take a long time (sometimes months or even years) before the estate is distributed to the beneficiaries.
Find out more about estate administration steps.
Information on property sales in deceased estates
At times, a property in a deceased estate is sold.
Queensland Public Trustee sells property Queensland-wide. In Brisbane and surrounds, our real estate team comprises experienced, licensed auctioneers and sales agents who directly manage property sales. In regional and rural Queensland, we partner with local real estate agents that have extensive local area knowledge to ensure our customers have the best opportunity to achieve a good property sale outcome.
Find out more and search properties for sale.
Frequently asked questions (FAQs) about dying without a Will
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An administrator may not be able to deal with the deceased estate until the Supreme Court of Queensland has granted them ‘letters of administration’. Letters of administration are issued by the court after the court has examined certain documentation and is satisfied the person applying for letters of administration is authorised to administer the estate. Letters of administration are a form of grant for a deceased estate like probate. It is most typically applied for by a family member who may benefit from the estate.
In some cases, it may not be necessary to obtain letters of administration and family members may be able to deal with the estate without it. However, some organisations that administer assets may require letters of administration to be produced before they will release the asset to the estate.
Letters of administration may also apply if there is a Will, and the named executor(s) does not act. For example, the executor has predeceased, or the executor is unable or unwilling to act in the administration of the estate. Someone else may apply to administer the estate with the Will and they will obtain letters of administration rather than probate.
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If no one can be traced or it is uncertain whether someone is still alive who could benefit, then their share in the estate may be held in unclaimed monies.
If you don’t have any living relatives at all, then the law says that your estate will go to the Crown (that is the Government).
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Yes, a de facto partner has the same rights as a spouse and is defined as 'either one of two persons who are living together as a couple in a genuine domestic basis but who are not married to each other or related by family.' A de facto partner can be a same-sex partner, or of any gender. To share in the estate of a partner who has died intestate, the relationship must have been in existence continuously for at least two years ending on the deceased’s death.
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An adopted person has the same rights as any lawful child to the estates of their adoptive parents and the relatives of their adoptive parents, as though they are natural grandchildren, brothers or sisters, or nephews or nieces.
When an adopted person dies without a valid Will, their adoptive parents and their next of kin have the same rights as if they were the adopted person’s natural parents and next of kin. Additionally, the descendants of an adopted person have the same relationship rights as their parent.
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A child born out of marriage has the same rights to share in an estate as a child born in a marriage. At times, there may be a need to prove paternity. Proof of paternity may include evidence such as: the father admits paternity during his lifetime, or paternity is established against the father during his lifetime, or a declaration of paternity is made by the Supreme Court after the father’s death. If the father wants to be eligible for a share of a child’s estate, paternity must have been established while the child was living.