Most people don’t put off making a Will because they don’t care about their family. They put it off because it feels like something that can wait until next year — after the renovation, after the children finish school, after work settles down, after the next holiday.
The trouble is that the decision doesn’t disappear when you delay it. It just gets made by someone else.
When a person dies in Queensland without a valid Will, they die intestate. That means a formula set out in the Succession Act 1981 (Qld) determines who receives what — not the person who spent forty years building it, and not the family who knew what they wanted.
For some estates, the formula produces a result that’s close enough to what the person would have chosen. For plenty of others — blended families, de facto relationships, family businesses, adult children in very different circumstances — it produces something the person would never have signed off on. And by then, nobody can change it.
The formula doesn’t know your family
This is the part that surprises people most.
The intestacy rules don’t look at who was closest to you. They don’t look at who moved back home to provide care in the last two years, who’s struggling financially, who you’d already helped with a house deposit, or who you’d promised the boat to. They look at legal categories in a fixed order set out in Schedule 2 of the Act. A surviving spouse and surviving children come first, and they share — the spouse does not simply take everything. The spouse receives the household chattels and a statutory sum, and the rest of the estate is divided between the spouse and the children according to a formula. Only if neither a spouse nor children survive does the estate move outward: to parents, then brothers and sisters, then grandparents, then aunts and uncles, then first cousins.
Those categories are closed. If nobody in them survives you, the estate passes to the Crown — the State receives what your family did not.
That mechanical approach has consequences that catch families off guard.
In practice this means a surviving husband or wife may find that a share of the estate — potentially including a share of the family home — now legally belongs to the children. If those children are adults with their own financial pressures, or if they’re from an earlier relationship, that’s not a theoretical problem.
A surviving spouse does have a right to elect to acquire the shared home, rather than watching it go to market. But the election comes with conditions, and where the home is worth more than the spouse’s entitlement, the spouse has to fund the difference. For many families that money isn’t there. So the protection is real, and it is often not enough — which is how a house that was never meant to be sold ends up being sold.
“Spouse” is a legal term, not a personal one. Under the Act it covers a husband or wife, a registered civil partner, and a de facto partner who meets the statutory requirements — which include having lived together as a couple on a genuine domestic basis for a continuous period of at least two years ending on the death.
That last one matters enormously on the Gold Coast, where long-term unmarried couples are common. If you were together but never married and never formalised anything, your partner may have to prove the relationship qualified — gathering evidence about finances, living arrangements and how you presented to the world, in the weeks after losing you. Our guide to de facto relationships and Queensland law explains where those lines sit and why documentation matters.
Step-children generally aren’t included. Intestacy is built around legal relationships — biological children and adopted children. A step-child you raised from the age of four, who calls you Dad, who you’d think of without hesitation as one of your kids, is not automatically part of the picture. A step-child may still be eligible to bring a family provision claim (see below), but that means a court application rather than an entitlement — and a claim is not the same thing as being provided for.
Anyone you personally chose is left out entirely. No godchildren. No close friend who became family. No charity you supported for twenty years. No neighbour who drove you to every appointment. No specific gift of the thing that would have meant the most to a particular person.
There’s also a survivorship requirement. A person who would otherwise inherit but who doesn’t survive you by 30 days is treated as having died before you. It’s a sensible rule that avoids assets passing through two estates in quick succession — but it’s another reminder that the outcome is governed by rules, not intentions.
Someone still has to administer the estate
Without a Will, there is no executor. Nobody has been appointed. Nobody has standing.
Before anyone can deal with bank accounts, sell property, close investments or wind up a business, a family member — usually a spouse or an adult child — has to apply to the Supreme Court of Queensland for letters of administration. It’s the intestacy equivalent of probate, and it’s a genuine court application supported by evidence about the deceased, the assets and who is entitled to apply.
It takes longer than probate on a clean Will. It costs more. And it happens at the precise moment a family has the least emotional capacity for paperwork.
Meanwhile, real life doesn’t pause. Mortgage repayments keep falling due. Insurance policies need renewing. Rates and body corporate levies keep arriving. If there’s a business, someone with legal authority may be needed to sign contracts, pay staff or deal with suppliers — and until administration is granted, that person doesn’t exist. Families frequently spend months in a holding pattern for no reason other than that nobody yet has legal standing.
It gets slower again if there’s disagreement about who should apply. Two siblings who both believe they should be running things can add months and legal costs to an estate that was otherwise straightforward.
Not having a Will doesn’t prevent disputes — it invites them
There’s a common assumption that estate fights only happen when there’s a Will to argue about. In our experience, the opposite is frequently true.
Intestacy produces outcomes that feel deeply unfair to the people living through them. The adult child who moved home to provide daily care for three years and receives exactly the same share as a sibling who visited twice. The partner of fifteen years who has to establish the relationship existed. The child of a first marriage watching the family home divide in a way their parent had explicitly promised would never happen.
Eligible people can apply to the court for further provision from an estate, and that applies to intestate estates as well as testate ones. Strict time limits apply, and they run from the date of death — which is why anyone thinking about it should get advice early rather than waiting to see how things settle. We set out the eligibility questions, the process and what courts weigh up in our detailed guide to family provision claims in Queensland.
The point isn’t that a Will makes disputes impossible — it doesn’t. Wills are contested too, and we act in those matters regularly. The point is that a clear, properly drafted, current Will removes most of the ambiguity that disputes feed on, and it puts your reasoning on the record. A Will can be explained. A formula can only be applied.
What a Will actually gives you
Not complexity. Control.
- You choose your executor — someone you trust to handle the job properly, rather than leaving it to whoever applies first
- You decide who receives what, including gifts the formula would never make
- You can appoint a guardian for children under 18
- You can protect vulnerable beneficiaries — a young adult who isn’t ready for a lump sum, a person with a disability, someone in a difficult relationship or with creditors
- You can deal properly with assets or beneficiaries overseas, which the intestacy formula handles poorly (see overseas beneficiaries)
- You can address a blended family deliberately, balancing a current partner and children from an earlier relationship
- You reduce the cost, delay and conflict your family faces at the hardest possible moment
For most people with reasonably straightforward circumstances, a Will is not a long or expensive exercise. It’s a conversation about your situation, careful drafting, and a signing appointment. The complexity people fear is almost always less than the complexity they leave behind by doing nothing.
And if you already have one
A Will that no longer reflects your life can create almost as much difficulty as no Will at all.
Marriage, divorce, the end of a de facto relationship, a new child or grandchild, a property purchase or sale, a business restructure, the death of a named executor or beneficiary — any of these can change how a Will operates, and some can revoke parts of it by force of law. We regularly see Wills that were perfectly sensible when signed and are now actively unhelpful.
A Will drawn up before a divorce, or before a new partner moved in, is not a plan. It’s a snapshot of a life that no longer exists. Our practical guide to updating your Will sets out the life events that should prompt a review, and how often to look at it even when nothing dramatic has happened.
If you’re not sure whether yours still works, that’s a short conversation, not a big project.
Talk to us
At Frigo James Legal, our wills and estates lawyers on the Gold Coast help people put something sensible in place — and we also help families who are already dealing with an estate where no Will exists, including applications for letters of administration and disputes about entitlement.
Both conversations are far easier when they happen early.
Call (07) 5621 3799, Monday to Friday, 8:30am–5:00pm, or get in touch here.
