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Dying Intestate in Western Australia

If a person dies in Western Australia without leaving a valid will, this is known as dying intestate. In cases of someone dying intestate in WA, the estate of the deceased (including all real estate, bank accounts, securities, shareholdings, and other assets owned at the time of death) is distributed according to rules set out in legislation, rather than according to the wishes of the deceased. In Western Australia the legislation determining this distribution is the Administration Act 1903 (WA).

What is the Result of Dying Intestate in WA?

Unfortunately, the family of the deceased will suffer a significant amount of inconvenience and additional effort if someone dies intestate in WA. It may also result in the deceased’s estate being distributed in a way that is inconsistent with their wishes.

How is an Estate Distributed after Dying Intestate in WA?

There are different rules within the Administration Act 1903 for large and small estates. An estate will be distributed differently depending on whether the deceased had a spouse and children. It will also be distributed differently depending on whether the death occurred before or after 30 March 2022.

It is easy to imagine a scenario when this distribution would not be in keeping with the wishes of the deceased, and where it could give rise to unintended outcomes. In most cases, dying intestate will not result in a surviving spouse being required to sell the marital home to distribute a proportion of the asset to children, as most couples own properties jointly with a right of survivorship. However, where a home is not owned jointly, the spouse of someone who dies intestate may lose ownership of the marital home. With the increase in blended families and second marriages, it is more important than ever that a will reflects how a testator intends their assets to be distributed after their death.

When the deceased has no spouse or children, their estate is distributed to other direct relatives – that is, a parent, sibling, uncle or aunt, grandparent, niece or nephew – in an order and percentage determined by law. If a person dies with no direct relatives, the entirety of the estate will pass to the state government (the Crown).

When someone dies intestate in WA it is necessary to apply to the court for a Grant of Letters of Administration to give authority to an administrator to distribute the estate according to legislation. This process introduces significant delay and complexity to the probate process, and may require expenditures that will reduce the estate.

A partial intestacy may occur even when there is a valid will but it does not dispose of all assets of the deceased. This commonly happens when a will is made at a particular point in time, and is not updated when the testator acquires new or different classes of assets. When a partial intestacy occurs the executor of the will is required to obtain Letters of Administration from the court to determine the distribution of the assets not accounted for in the original will. It is for this reason that it is critical that wills are updated regularly, or alternatively, that wills are drafted competently by a solicitor to ensure that they contemplate future assets and clearly indicate how these assets should be distributed.

Who Can Apply for Letters of Administration?

When someone dies intestate in WA, someone over eighteen years of age and of sound mind will need to apply to the Probate Office of the Supreme Court seeking a Grant of Letters of Administration. Any direct beneficiary of the estate can apply for Letter of Administration, or alternatively, the deceased’s beneficiaries can request that the Public Trustee administer the estate. If there are no direct relatives, then anyone, including a creditor of the estate, can apply for Letters of Administration.

The individual seeking the Letters of Administration must annex a Statement of Assets and Liabilities to the application, which lists and values the assets and liabilities of the estate. After the application has been received, the Probate Registry will issue Letters of Administration if they are satisfied that the application is appropriate. A Letters of Administration is in effect an order of the Supreme Court empowering the administrator to distribute the estate in accordance with intestacy law in WA. As applying for Letters of Administration is a complex process, it will often be necessary to seek the assistance of a solicitor to undertake this process.

If you require legal advice regarding drawing up a will, the impact of dying intestate, and or any other legal matter, contact Armstrong Legal on 1300 038 223 or send us an email.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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