16 Jul 2017

 

 

 

Intestacy

 

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.

Who will take under the Administration Act?

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 a distribution under the Administration Act is unlikely to be what you would want to happen.

What if the provisions of the Administration Act do not provide adequately for dependents?

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.

Conclusion

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.

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