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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.

Intestate Estates (WA)

When someone is described as “intestate” it means that they have passed away without making a valid will. In Western Australia, intestate estates are distributed according to the rules set out in the Administration Act 1903. When an estate is intestate, the wishes of the deceased for their own estate cannot be considered, and a court-appointed administrator is responsible for administering the deceased estate. This article examines the succession laws in WA and highlights the right of the next of kin to inherit from intestate estates.

Is Dying Intestate Common?

It is common for people to put off making a will, either because they are uncomfortable dwelling on mortality, or they do not feel it is necessary, given their age or lack of assets. When the unexpected happens, family members are left behind to cope with the fact that they cannot be guided by the deceased’s wishes, but must abide by the dictates of the law. In the absence of a will to record the wishes of the deceased, parties often disagree on what the wishes may have been.

A deceased person is also intestate if the have a will but it is successfully challenged and declared invalid because for instance the document was written under duress, or was found to be forged or fraudulent. The Wills Amendment Act 2007 legislates that a will is also invalid if the testator subsequently married (unless the will contained a contemplation of marriage clause) or divorced. These actions revoke the will and the estate must be distributed according to the rules of intestacy.

Partially Intestate Estates In WA

It is possible for a deceased to have a valid will, but still, be partially intestate because the document does not account for all the deceased’s assets. This is often the result of a will not having been updated regularly as it should be after there are births, deaths and marriages in the family and significant changes in ownership of assets. A solicitor can help to draft a will to make allowances for future events but it is still good practice to review a will every few years to make sure the contents remain current and correct.

Administering An Intestate Estate In WA

An application to the Supreme Court of WA for Letters of Administration is an important first step in the administration of an intestate estate. A suitable person who is entitled to inherit from the estate must make the application, usually the spouse or de facto partner or child of the deceased. If the deceased was not in a long-term relationship and had no children, then another close relative can apply, or the court can choose an appropriate party (such as the Public Trustee) to undertake the duties of administrator.

The application for a probate grant to administer an intestate estate will include a Motion for Letters of Administration, a sworn affidavit of the assets and liabilities of the estate, letters of consent from other eligible beneficiaries, any required sureties and an original of the deceased’s death certificate.

Any assets that are jointly owned by the deceased and another person will not form part of the deceased estate as they are automatically transferred to the sole ownership of the surviving owner. The same is true of the deceased’s life insurance benefits and superannuation payouts that have a binding death benefit nomination.

Laws Of Intestacy And Succession

In WA, the liabilities of an estate must be discharged before any other actions are taken. After that the assets of an intestate estate are distributed differently according to the size of the estate and whether the deceased had children (“issue”) or a spouse.

If there are a spouse and issue, then the spouse inherits the entire estate if the residual estate is worth less than $50,000. If it is worth more than that amount, then the spouse inherits $50,000 and an additional one-third of the estate. The children of the deceased (both biological and adopted) inherit the remaining two-thirds of the estate.

If there is a spouse but no child, and an estate of a value over $75,000, the spouse receives the first $75,000 and half of the remaining estate. The remainder is inherited by the parents of the deceased and siblings, depending on the size of the estate.

If the deceased has no spouse, then any children inherit equally.

Estranged And De Facto Spouses

In the event that the deceased had a de facto partner for at least two years, and an estranged spouse, then both are able to inherit from the spousal portion of an inheritance. If the de facto relationship is older than 5 years, then the de facto spouse is entitled to the whole inheritance and the marital partner inherits nothing.

Armstrong Legal has an experienced Contested Wills Team that can help you draft a will to avoid your estate becoming intestate. Please contact our friendly team on 1300 038 223 or send a message to arrange an appointment to discuss your needs.

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