If someone passes away without a valid Will in place, they are considered to have died intestate. This scenario is more common than you might expect. Practicing as a lawyer dealing with Estate planning, I often get asked, ‘What will happen if I die without a Will?’, ‘Will my children receive anything?’ and ‘Where does my Estate go?’
In this article, I explain intestacy laws in Western Australia (WA), including who can administer such an Estate, how it is distributed and to whom. Keep reading to learn what happens when someone passes away before they draft a valid Will – and what you can do to manage this situation as efficiently as possible.
Why do some people not create a valid Will?
The most common reason people die without a Will is not taking action. This can happen due to fear of death, believing they have no valuable assets to leave behind, doubting the necessity of a will, or being undecided about who should inherit their Estate.
Other reasons for passing away intestate include:
- Misplacing the original Will;
- Improper preparation of the Will, such as not having it correctly witnessed or forgetting to sign it;
- Unintentionally revoking a Will, for example, by getting married after making it;
- Creating a will that fails to distribute all assets or doesn’t meet the formal or informal requirements of a Will in Australia; or
- The Will is signed by someone who lacked the mental capacity to understand what they were doing.
What happens if there is no Will?
If someone passes away without a valid Will, they are referred to as “intestate”. The distribution of their assets is then governed by intestacy laws under the Administration Act 1903 (WA), which determines what percentage is allocated to the surviving family members.
The rules are complex and change depending on factors such as the:
- Estate’s value; and
- Number of family members involved and their relationship to the deceased.
If the deceased has no spouse or children, their Estate is allocated to immediate relatives such as parents, siblings, uncles, aunts, grandparents, nieces, or nephews, following a legal hierarchy and distribution percentages. In cases where no immediate relatives exist, the entire Estate is transferred to the state government (the Crown).
Irrespective of whether someone passes away with or without a valid Will, an application to the Probate Office of the Supreme Court is usually necessary. The applicant must be over 18 years old and of sound mind. However, there is security as to how the Estate will be distributed.
Letters of Administration
When someone dies without a Will, the individual responsible for finalising their Estate is referred to as an administrator.
An administrator does not have the authority to manage a deceased Estate until the Probate Office of the Supreme Court verifies that they are suitable for this role. Moreover, financial institutions may refuse to release the assets held in a deceased Estate without this legal document.
Therefore, the potential administrator must apply to the Supreme Court of Western Australia’s eCourts Portal for Letters of Administration for official appointment. This process is governed by the Non-Contentious Probate Rules 1967 (WA).
Importantly, this applicant is required to submit a notice of intention to apply for letters of administration at least 14 days beforehand. The notice period allows creditors and others with potential claims on the Estate to come forward. After the assets have been distributed, the administrator is protected from any claims that were not submitted during the notice period.
After the application is submitted — along with a Statement of Assets and Liabilities detailing and valuing the Estate’s assets and liabilities — the Probate Registry will review it and issue a Grant of Letters of Administration if all requirements have been met.
Once issued, all assets of the deceased are transferred to the administrator.
Who can administer an intestate Estate?
Typically, the court grants the administration of an intestate Estate to the person or people with the highest entitlement to the Estate. In WA, the spouse or children of the deceased are generally considered the preferred choices for administering an Estate over other surviving family members.
Alternatively, the beneficiaries may choose to have the Public Trustee manage the Estate’s administration. In cases where there are no direct relatives, any interested party, including creditors, can submit an application for Letters of Administration.
The appointed administrator’s duties include identifying the relatives entitled to a share of the Estate according to the laws of intestacy outlined in the Administration Act 1903 (WA).
Administering an intestate Estate in WA
Section 14 of the Administration Act 1903 (WA) outlines the formula for distributing an Estate when someone dies without a valid Will. These intestacy rules specify how the Estate is allocated to the next of kin, including spouses, de facto partners, and descendants.
Here are the main principles for distributing intestate Estates in WA at the time of writing:
- Spouse’s entitlement: If you die intestate and were married or in a domestic or de facto relationship at the time of your death, your spouse or de facto partner is given priority over other relatives for a share of your assets.
- No children: If you have a surviving spouse or de facto partner but no children, your spouse or de facto partner inherits your entire Estate.
- Children with current spouse: If you have children with your current spouse or de facto partner and no children from previous relationships, your spouse or de facto partner inherits the entire Estate (provided it is valued under $472,000). If the Estate is worth over $472,000, then the spouse or de facto partner inherits the first $472,000, as well as one-third of the remaining assets. The other two-thirds of the Estate will be divided equally amongst the children.
- Children from previous relationships: If you have children from a previous relationship, your current spouse or de facto partner receives your personal effects, a statutory legacy (adjusted for inflation), and half of the remaining Estate. The other half is divided equally among your children.
- Children only: If you have children but no spouse, the Estate is divided equally among your children.
- Other relatives: If you have no spouse or children, the Estate may go to other relatives such as parents, siblings, or grandparents in a certain order.
- No eligible relatives: If there are no qualifying relatives, the Estate reverts to the Western Australian Government.
Notably, these intestacy rules do not allow for the distribution of your Estate to relatives more distant than first cousins, and in-laws are not recognised as next of kin. This means step-parents, mothers-in-law, and fathers-in-law are not included.
Therefore, dying intestate can create a host of complications for surviving family members. For example, a surviving spouse might need to share the Estate with children or stepchildren, or parts of the Estate could go to distant relatives with little connection to the deceased.
Consequently, dying without a Will may result in an Estate distribution that doesn’t reflect your wishes.
To ensure your Estate is distributed as you would have intended, it’s important to create and regularly update a valid Will.
Get personalised support with drafting a valid Will
Passing away intestate can lead to significant uncertainty that is more likely to trigger disputes. This situation may cause delays and incur extra costs if disagreements arise over the appointment of an administrator and whether the intestate distribution meets the needs of those closest to the deceased.
Therefore, having a valid Will is not only the safest option to secure your Estate, but the least emotionally taxing for your family. The “It will never happen to me” mentality is all too rife when dealing with Estate planning.
If you or someone you know is trying to navigate intestacy laws, we recommend seeking legal counsel as soon as possible to address and resolve the issues swiftly.
Whether it be drafting a valid Will, or applying for Letters of Administration to the Supreme Court, our Estate Planning Lawyers are here to help. Contact us on 08 6244 0976 for more information.
Disclaimer
General Advice Warning
The information contained in this article is general in nature and does not take into account your personal situation. You should consider whether the information is appropriate to your needs, and where appropriate, seek professional advice from a suitably qualified lawyer.
All legal and other matters referred to in this article are of a general nature only and are based on Affinitas Legal’s interpretation of laws existing at the time and should not be relied upon in place of appropriate professional advice. Those laws may change from time to time and the information contained herein may be out of date.
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Although every effort has been made to verify the accuracy of the information contained in this article, Affinitas Legal, its officers, employees and agents disclaim all liability (except for any liability which by law cannot be excluded), for any error, inaccuracy in, or omission from the information contained in this article or any loss or damage suffered by any person directly or indirectly through relying on this information.
