If you die without a valid will, your estate will be distributed according to the rules set out in the Administration Act 1903 (WA), regardless of your personal wishes. The share received by a spouse, children, de facto partner, or other relatives depends on the value of the estate and the family members who survive you. These statutory rules can produce outcomes that do not adequately provide for dependants or reflect your intentions. Having a properly drafted will helps ensure your assets are distributed according to your wishes and can reduce disputes and complications for your family.
What happens if I die without a valid will in Western Australia?
Our Estate’s Team explores the dire situation when a person dies without a Will.
Summary
This article explains what happens when a person dies without a valid Will in Western Australia. It outlines how an intestate estate may be distributed under the Administration Act 1903, who may administer the estate and why having a valid Will can help ensure your estate is distributed according to your wishes.
What happens if you die without a valid Will?
If a person dies without a valid will, he or she dies “intestate”. In this situation, the law sets out how their property will be shared after their debts have been paid. The entitlements of the various members of the family in Western Australia are set out in the Administration Act 1903.
How is an intestate estate distributed?
The rules as to who would take your estate under this act are complex and apply regardless of what may have been your wishes or your feelings towards your family members.
Entitlements depend on the value of your estate and the relatives you leave behind. Example:
- if you die and leave a spouse and children, your spouse will receive the household chattels, the first $50,000 of the remainder of your estate, and then a proportion of the balance. You children will receive the rest of the balance; or
- if you die and leave a spouse but no children then your spouse will again receive the household chattels but then the first $75,000 of the remainder of your estate and one half of the balance. The other one half of the balance will be divided in the proportions set out in the Administration Act between your parents, your brothers and sisters, and children of any deceased brothers or sisters.
- There are also fairly complex rules about whether de facto partners take, and the circumstances in which they may do so.
It is fairly certain that distribution under the Administration Act is unlikely to be what you would want to happen.
Can intestacy leave family members without adequate provision?
There can often be situations where the provisions do not provide adequately for a spouse or a dependent child. Example if the house is in the husband’s name the wife might not be entitled to the house absolutely and will have to share it either with the children or, if there are no children, the deceased’s nephews and nieces.
Who administers an estate when there is no will?
Anyone over the age of 18 who is entitled to a share of the estate can apply to administer and distribute the estate. This often leads to problems, especially where the persons entitled do not get along.
Why is having a valid Will important?
It is probably clear from this, that it is unlikely that you will want your estate to be distributed in accordance with the rules set out in the Administration Act. In such circumstances, we strongly recommend that you have a will prepared that satisfactorily provides for your wishes and the protection of your dependents.