A person dies intestate if they die without a valid Will. If a Will exists but doesn’t dispose of all of the estate, a partial intestacy occurs. In Western Australia, anything not covered by a Will is distributed under a formula in the Administration Act 1903 (WA), not according to what the deceased would have wanted.
When does an intestacy happen?
The most common case of an intestacy is when a person dies having never made a Will.
Other causes of intestacy include:
- Where the Will was revoked by marriage. In Western Australia, marriage revokes an existing Will unless the Will was made in contemplation of that marriage. People remarry and forget the Will they made twenty years earlier is no longer effective.
- Where the Will was not validly signed or witnessed. A homemade Will or a Will kit completed without advice may fail if it isn’t properly signed. The Court has a power to admit an informal document to probate, but the application costs the estate money and it is not guaranteed.
- Where the Will does not dispose of everything. This is a partial intestacy. It usually happens where a named beneficiary has died before the testator and the Will doesn’t say what should happen to the gift, or where the Will gives away specific assets and says nothing about the residue.
- Where the original Will cannot be found. If the original was last known to be in the Will maker’s possession and cannot be located after death, there is a presumption that it was revoked by destruction. A copy may still be admitted to probate, but the estate carries the cost of proving it. See Where should I store my Will?
What happens to the estate?
Where the deceased lived in Western Australia, their estate will be divided according to a statutory formula set out in section 14 of the Administration Act 1903 (WA). These laws set out who inherits and in what shares.
Read the full breakdown: What are the rules of intestacy in Western Australia?
Who deals with the estate?
Where there is a Will, the executor named in it has authority to deal with the estate. Where there is no Will there is no executor, so nobody has authority until the Supreme Court appoints someone.
One or more of the adult beneficiaries needs to apply for a Grant of Letters of Administration. Until that grant issues, nobody can sell the house, close the accounts or deal with the assets. This process is usually straightforward, but may be complicated if the beneficiaries do not agree on who should apply, where the beneficiaries are overseas or where the beneficiaries of the estate are under 18 years.
Read more: What is Letters of Administration?
Who misses out?
The formula divides the estate between the deceased person’s family, regardless of their relationship with those people or with other important people in their life. The following people receive nothing on an intestacy, no matter how close they were to you:
- a stepchild you raised but never adopted;
- a carer, a friend or a godchild;
- a charity you supported for decades; and
- a grandchild, unless their parent died before you.
Some of these people may be able to bring a family provision claim against the estate, but they will need to prove that the person should have provided for them.
What else is lost without a Will?
Unlike an intestacy, a Will can help you with the following:
- Guardianship of your children. A Will can nominate a testamentary guardian for children under 18. An intestacy cannot.
- Protection for a vulnerable beneficiary. On intestacy, a share is paid out directly to the beneficiary at 18. Where that beneficiary has a disability, a bankruptcy risk or an addiction, there is nothing the formula can do about it. A Will can direct the share into a trust to delay the age or time at which a beneficiary receives it.
- Tax planning. A testamentary trust can distribute income to beneficiaries’ children at adult marginal rates. An intestacy distributes capital and the opportunity is gone.
- Speed and cost. An intestate estate is generally slower and may be more expensive to administer than an estate with a clear Will and a willing executor.
Frequently asked questions
Does the Government take my estate if I die without a Will in WA?
Only where no eligible relative survives you, including spouses, parents, children, grandchildren, siblings, aunts, uncles, nieces and nephews. If this happens, the estate then passes to the Crown. In every other case it passes to your relatives under the statutory formula.
My partner and I are not married. Does she inherit if I die without a Will?
Only if she meets the statutory de facto test. Whether she does is a question of evidence and proving it after your death is her problem to solve. You can avoid any doubt by making a Will nominating her as your beneficiary.
Can I fix a partial intestacy?
Not after death. During your lifetime, a Will that includes a residuary clause and substitutional gifts prevents it.
Dealing with an estate where there is no Will?
We act for administrators and beneficiaries in intestate estates, from the application for Letters of Administration through to distribution. Fixed prices are published, so you know what it costs before we start.
Call the probate team on (08) 9220 4490 or see Perth Probate Centre.
Or make a Will
See our Wills service and pricing, or book an appointment.
This article is general information and not legal advice.
