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 Intestate Estates 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.
New Western Australian Intestacy Provisions
If a person dies without a will, the law sets out how their estate is to be distributed in accordance with a formula. During 2022, changes were made to how a person’s estate is to be distributed when they have died without a will. A summary of the intestacy laws that apply to deaths before and after the changes is set out below.
Intestate estates before 30 March 2022
If a person died without a will in Western Australia before 30 March 2022 and was survived by a spouse (or de facto spouse) and children, the following distribution would occur.
The spouse would receive:
- Household chattels (articles of personal or household use or adornment);
- $50,000 together with any interest;
- One third of the balance of the estate.
The surviving children would receive:
Two thirds of the balance of the estate would go to the surviving children in equal shares.
If the estate does not exceed $50,000 then the entire estate is left to the spouse.
If a person died before 30 March 2022 and was survived by a spouse but no children, then the spouse would receive:
- Household chattels
- $75,000 together with any interest
- Half of the balance of the estate
The parents would receive:
- First $6,000; and
- Half of the remaining half of the estate
The siblings would receive:
- Half of the remaining half of the estate
If the estate does not exceed $75,000 then the entire estate is left to the spouse.
Intestate estates after 30 March 2022
If a person dies on or after 30 March 2022, and leaves a surviving spouse and children, the following distribution will occur.
The spouse will receive:
- Household chattels
- $472,000 together with any interest
- One third of the balance of the residuary estate
The surviving children will receive:
Two thirds of the balance of the estate would go to the surviving children in equal shares.
If the estate does not exceed $472,000 then the entire estate is left to the spouse (de facto).
If a person dies on or after 30 March 2022 and leaves a spouse but no children, then the spouse, parents and siblings receive the following:
The spouse will receive:
- Household chattels
- $705,000 together with interest
- One half of the balance of the estate
The parents will receive:
- $56,500
- Half of the remaining half of estate
The siblings will receive:
- Half of the remaining half of estate
If the estate does not exceed $705,000, then the spouse is entitled to the entire estate.
The Administration Act 1903 allows the Minister to review the amounts specified above on or before 30 June 2023 and on or before 30 June every second year after that. At those times, the Minister will decide whether or not to review the amounts stated above. There is a formula that the Minister must follow when declaring the amounts in the Act.
Where there is no spouse
Other than the above changes, the remainder of the formula under the Administration Act 1903 remains the same as it was prior to 2022.
If a person dies before, on or after 30 March 2022, and only children survive but no spouse, then the children will receive the estate in equal shares.
If a person dies before, on and after 30 March 2022 and there is no spouse, children, siblings, parents, nieces/nephews, grandchildren, grandparents or aunts or uncles, then the estate will go to the Crown.
Where there is a spouse and a de facto
It is important to note that in order for a de facto spouse to receive a distribution from an intestate estate, they must have been residing with the deceased for at least two years immediately prior to the deceased’s death.
If a person dies leaving a spouse and a de facto partner, and the deceased lived with the de facto partner for a period of at least two years immediately before the death of the decease and did not reside with the spouse at all (i.e. they were separated) during that period, then half of the estate would go to the de facto spouse and the other half to the legal spouse.
If a person dies leaving a spouse and a de facto partner, and the deceased lived with the de facto for a period of at least five years before the death of the deceased, and did not live with the spouse at all for any of that period then the de facto will be entitled to the estate.
If a person dies, leaving more than one de facto partner then the de facto partners will be entitled to the estate in equal shares.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
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.