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How it works if you don't have a Will or Enduring Power of Attorney

You may often hear why you should have a Will or Enduring Power of Attorney in place however, there are many people that still choose not to have them in place. The choice is up to the individual, but it is important to know your rights and how things will work either way.


An Enduring Power of Attorney is utilised when you are still alive but do not have capacity to make decisions. Upon death, the power under an Enduring Power of Attorney ends and the Will comes into effect.


If you lose capacity and do not have an Enduring Power of Attorney in place, your next of kin may be able to make decisions for you however, it depends on your circumstances and situation. We are seeing an increase by organisations requiring family or friends of the individual to come forward and make an application to Queensland Civil and Administrative Tribunal (QCAT) to be appointed as an Attorney, rather than simply rely on the relationship of next of kin. The appointment by QCAT can also take some months. If no family or friends come forward or are able to be appointed by QCAT, it is likely that the Public Trust will be appointed as Attorney to handle your financial affairs and the Public Guardian will be appointed as Attorney to handle your personal and health matters.  


Upon death, if there is no Will in place, the laws of Intestacy pursuant to the Succession Act 1981 (Qld) will apply. If you have a spouse, there is a misconception they will get everything which is not the case. Your spouse is entitled to $150,000.00, plus the household items, plus either a one half (if there is only one child of the deceased), or otherwise a one third share of the rest and residue of your estate. Your children will take the balance half share or one third equally. There are further provisions in place if you are not survived by these people as to who is entitled to the estate.  


If your situation includes adopted children, stepchildren, or people with disabilities, this can affect the above. Further, depending on what assets you have and how they are held legally, they may not end up as you intended or outlined as above, causing a great deal of stress and expenses for those left behind. A Family Provision Claim (contesting an estate) can be brought against an estate whether you have a Will in place or not.


No matter your views on the documents, it is worth a discussion with our friendly wills and estate solicitors to learn about your rights and to discuss your assets, situation and how this will work upon death with or without a Will to ensure such is appropriate for your circumstances and in accordance with your wishes.