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WHO INHERITS WHEN
THERE IS NO WILL?

A 2017 survey by the WA Public Trustees found that half of West Australians over the age of 40 do not have a valid Will. The survey also found that only 19% of families with young children have a valid Will.

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What happens when you die ‘intestate’ (without a Will) in Perth

If the worst should happen, having a valid Will means your family has the peace of mind to know what you wanted and will be able to take the necessary time to process their loss.

No-one wants to think about death, but it’s an important part of ensuring that your wishes are carried out and your loved ones are taken care of.

What is a valid Will in Perth?

For a Will to be valid, or legally effective, it has to:

  • Have been created by an adult of sound mind (i.e. someone who is legally capable), in a way that adequately reflects their wishes
  • Detail what happens to the estate (e.g. assets, money and specific gifts)
  • Appoint someone as an Executor for the estate (i.e. someone who divides the estate to the beneficiaries according to the deceased’s wishes)
  • Have been properly witnessed, signed and executed (i.e. all parties need to sign it together, in the same room and with the same pen)

This is part of the ‘Probate’ process, where the WA Supreme Court verifies that the Will is valid and gives the Executor the ability to carry out their duties. Nothing can happen until Probate has been granted.

For a Will to remain valid, it needs to be viewed as a working document. As specialist will lawyers, Willcraft Estate Planning recommends updating your Will every 3–5 years, or when there’s a significant event in your life – such as a marriage, divorce, births of children and grandchildren, deaths in the family, starting a business and so on. Don’t fall into the trap of putting it in a drawer and forgetting about it!

It’s also not just a matter of having a Will, but the right sort of Will to deal with your specific set of needs and circumstances. For this, you need a specialist Will lawyer like Willcraft.

What happens when someone dies without a Will in Perth?

When someone dies without a valid Will, it’s called ‘intestacy’ or they are said to have died ‘intestate’. Once the deceased’s debts have been settled, the Administration Act 1903 (WA) states how their estate must be divided. This, unfortunately, may not reflect the person’s wishes.   Many families are caught out each year because they assume that the spouse receives the bulk of the deceased’s estate, whether or not they had a Will. Unfortunately, that’s not always the case.

Here’s how intestate estates are divided:

INTESTATE ESTATE DIVISION
Spouse and children
INTESTATE ESTATE DIVISION
Spouse only
Spouse receives:
• Household chattels (personal possessions)
• First $50,000 of the estate
• 1/3 of the balance of the estate

Children receive:
Equal share of the remaining 2/3 of the estate
Spouse receives:
• Household chattels (personal possessions
• First $75,000 of the estate
• 1/2 of the balance of the estate

Deceased’s parents and siblings (if any) receive:
Equal share of the remaining 1/2 of the estate

The Administration Act further identifies how intestate estates are to be treated in a variety of potential circumstances (e.g. if there isn’t a surviving spouse but there are children and so on).

Depending on the estate’s value, the person’s Next of Kin may need to apply to become Administrator for the estate (referred to as ‘Letters of Administration’). Similar to an Executor role, the Administrator implements how the estate should be divided. The WA Supreme Court then rules on these findings, under the constraints of the Administration Act 1903 (WA). The Administrator has very limited powers to be able to gift things.

Intestacy rules were originally designed to protect dependents by granting them large portions of the estate, which are held in trust until they’re 18. However, in most cases, the deceased may have preferred their spouse to inherit so they can provide financially for the family in this distressing time. The Act is currently under review for this very reason. The proposed changes are outlined below.

Proposed changes to the Administration Act 1903 (WA)

On 27 June 2018, a new Parliamentary Bill proposed a series of changes to the current Administration Act, which hasn’t been revised since 1982. The amendments relate to how intestate estates are divided.

The purpose is to allow spouses, including de facto partners, to inherit the majority of the estate to ensure they’re taken care of and can best provide for any children. This will bring the WA legislation in line with other Australian states.

Here are the proposed changes to the Administration Act:  

PROPOSED INTESTATE ESTATE DIVISION
Spouse and children
PROPOSED INTESTATE ESTATE DIVISION
Spouse only
Spouse receives:
• Household chattels (personal possessions)
• First $435,000 of the estate – currently $50,000
• 1/3 of the balance of the estate

Children receive:
Equal share of the remaining 2/3 of the estate
Spouse receives:
• Household chattels (personal possessions)
• First $650,000 of the estate – currently $75,000
• 1/2 of the balance of the estate

Deceased’s parents and siblings (if any) receive:
Equal share of the remaining 1/2 of the estate

What if I don’t know if my Will is valid or I don’t have a Will at all?

For assistance with Will preparation and Estate Planning, get in touch with Willcraft by filling in our contact form or giving us a call.

We’ll talk through your specific needs and circumstances, and the different options available to you. If you have a Will, we can review it to ensure it is valid and identify any oversights.

Our team of specialist Will lawyers has also created a whole series of fact sheets. They cover a variety of important things to keep in mind when you make a Will, as well as the different types of Estate Planning and Will services that we offer in Perth.

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