Intestate Succession Act (WA) | Armstrong Legal

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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 Succession Act (WA)

When someone dies intestate in Western Australia, their estate is distributed according to the applicable intestate succession act, namely, the Administration Act 1903. This legislation authorises the appointment of an administrator to divide the deceased estate according to succession rules that privilege the rights of the spouse and children of the deceased. This article explores the role of the intestate succession act in intestate estates in WA.

Intestacy In WA

The word “intestate” means “one who dies without a will”. The practical result of someone dying intestate is that there is no legal recognition of their personal wishes for their estate, and the law decides what happens to the possessions according to a formula instead.

A deceased is intestate if they have made no will, or if their will is found to be invalid because it was fraudulent, forged, or written under duress. If someone has reason to believe that a will is invalid, they must lodge a challenge with the Probate Court of the Supreme Court of WA.

Partial Intestacy

It is not unusual for someone to think they have perfectly organised testamentary arrangements, and then after their death, it is discovered that the estate is actually partially intestate. This is most often the case when a testator either writes or updates their will without a solicitor. A good solicitor will draft a will to safeguard against such eventualities, and prompt the testator to make regular updates. A self-drafted will may be worded in such a way that it does not sufficiently identify the assets of the deceased, or the will is not drafted to contemplate future assets or future beneficiaries.

A will that is not updated regularly will not account for assets acquired over the years, resulting in a partially intestate estate that is subject to the intestate succession act. In these circumstances, the appointed executor will need to apply for a Letter of Administration With Will Annexed to gain power over the extra assets.

What Happens When Someone Dies Intestate in WA?

The first step in the process of administering an intestate estate is for an eligible person to apply to the Supreme Court of WA for a Letter of Administration to administer the estate. The list of eligible persons includes any mentally competent adult who is also eligible to inherit from the intestate estate, or in the absence of someone from this category, any other suitable applicant (including a creditor of the estate). The court can also employ the Public Trustee to administrate the estate in the absence of a more suitable applicant.

Who Inherits an intestate estate?

In WA, an intestate deceased estate is distributed according to the order of succession stipulated in the intestate succession act. After the liabilities of the estate are discharged, the remaining cash and assets are the residual estate for distribution. The only assets that are exempt are those that were owned in joint tenancy with someone else, as they will automatically transfer to the surviving owner upon the death of the co-owner, and classes of assets that are not included in the deceased estate, including some superannuation and insurance benefits.

An intestate estate is divided differently based on whether the deceased was married and had children before their death, as well as based on the overall monetary value of the estate. It is important to note that this distribution is specific to WA, and different rules apply in other jurisdictions.

In WA, if the assets of the estate are valued at less than $50,000, then the spouse inherits the entire estate. On the other hand, if the estate is worth more than that $50,000, then the spouse will receive the first $50,000 and one-third of the residual estate. The other two-thirds of the estate is divided equally between any legally adopted and biological children.

Should the estate (excluding personal household belongings) be valued at over $75,000 then the spouse is entitled to $75,000 and half of the residual estate. If the remainder is less than $6,000 then the other half is inherited by the deceased’s parents, if not then the parents receive $6,000 plus a further half of the remainder, with the last funds being inherited by the siblings of the deceased. If the deceased had no spouse any children will inherit equally. If the deceased left no spouse, no children or parents, then the deceased’s siblings share the inheritance equally, and if a sibling is deceased, their children are eligible to inherit the share that the sibling would have received.

Intestate Succession Act: Category Of Spouse

Under the WA intestate succession act, if the deceased had both a spouse and a de facto partner, then both can share the spousal portion of the inheritance. This is only warranted if the deceased was separated from their marital spouse and lived with their de facto partner for a period of at least two years immediately preceding their death. In fact, in WA if the de facto relationship had lasted for at least five years, then the de facto spouse inherits the whole spousal share and the marital spouse is excluded from inheritance.

The wills and estates team at Armstrong Legal can provide expert advice on how the intestate succession act will impact your estate, and answer any other questions you might have relating to estate law. Please call our team on 1300 038 223 or email our office to make an appointment.

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