Find out what happens and what you need to do in WA if there’s no last will and testament.
Intestacy is what happens when someone dies without a will - any assets not mentioned are said to be 'intestate'. Intestate assets, where necessary, are distributed to inheritors in a clear order of progression.
This guide explains intestacy in Western Australia, who gets what, and what happens if someone dies without a will. Note that the following information is general in nature only, and it’s a good idea to consult a professional for help managing intestacy.
Who inherits the deceased’s estate, and how much do they get?
The estate first goes to any debts that need paying off. This will always be the case, even if there is a will.
After that, assets are divided up between the spouse and children first. If there are no children then the spouse gets it all, while if there’s no spouse then any children will get it all.
If there's a spouse or partner, and children
- If the intestate assets are valued at less than $50,000, the spouse gets it all.
- If the intestate assets are valued at over $50,000 then the spouse gets the first $50,000 plus one-third of the remaining estate. The remaining two-thirds is divided up between all children.
If there's more than one spouse or partner
Assets may be divided between a spouse and a de facto partner, or one or the other might get it all, depending on the situation.
Assets are split between the spouse and partner if:
- The deceased lived with the de facto partner for at least two years immediately prior to death
- At no point in those two or more years did the deceased live with their spouse as husband and wife
Without meeting these requirements, a domestic partner is not eligible for any of the inheritance. Conversely, they can also get it all while the spouse gets none if these conditions are met and they’ve lived in a de facto relationship for at least five years.
If there is more than one eligible partner then the inheritance is divided among them.
If there's spouse or partner, and other family, but no children
If the intestate estate is valued at less than $75,000 (excluding the personal belongings of the deceased, such as clothing), then the spouse and/or partner(s) are entitled to it all.
If it’s valued at over $75,000, not counting personal household possessions, then the spouse or partners are entitled to the first $75,000, plus half of the remainder. The other half is distributed in the following way:
- If the remaining half is valued at under $6,000 then the deceased’s parents get it all, where possible.
- If the remaining half is valued at over $6,000 then the deceased’s parents get the first $6,000 plus half of the remainder. The other half of the remainder is distributed to the siblings of the deceased where applicable.
If there's no spouse, partners or parents
The siblings of the deceased share it all evenly. Where some of the siblings are themselves deceased but have children, then those children inherit the share that their parents would have
For example, consider how $100,000 would be divided in the following situations.
Jim had no children and was survived by his wife, parents and one brother. He also had a sister who passed away several years ago, leaving behind two children who are Jim’s nephew and niece.
He wrote up a will, but it didn’t cover everything so there was still $100,000 worth of assets to dispose of. These assets took the form of a surprise bank account that was only discovered after he passed away.
According to the intestate laws:
- Jim’s wife gets $87,500. This is because she’s entitled to the first $75,000, plus half of the remaining $25,000. If Jim also had children, his wife would get the same amount, and the children would get the rest.
- Jim’s parents get $9,250. This is because they’re entitled to the first $6,000 of the full remainder, plus half of the new remainder.
- Jim’s siblings are entitled to $3,250. This is because it’s half of the new remainder. Jim’s brother and sister each get half ($1,625). As Jim’s sister has also passed away, her share goes to her own children instead.
The final breakdown of the $100,000 is:
- Jim’s wife: $87,500, plus all of Jim’s personal property
- Jim’s parents: $9,250
- Jim’s brother: $1,625
- Jim’s nephew: $812.50
- Jim’s niece: $812.50
- Adopted children are counted as full children for the purposes of intestacy.
- There is no difference between full and half siblings for the purposes of intestacy.
- If the deceased owned property as a joint tenant then the other tenant will inherit the property, regardless of intestacy laws or what is said in a will.
- The estate is first used to pay off debts, regardless of what is said in a will or under the intestacy laws.
There’s no will. What happens now?
If there are assets to be distributed under intestacy laws, an estate administrator can be appointed to handle it. This person can get access to the deceased’s accounts to make sure the estate goes the new rightful owners.
One needs to apply to become an administrator, and this person can either do it themselves or hire a solicitor or other professional to do it on their behalf.
You can only apply to become an estate administrator if you are aged 18 or over and have mental capacity. Typically someone who is entitled to receive intestate assets can apply to be an administrator, or the courts may request them to apply.
If someone who is entitled to inherit is requested to apply but does not, then anyone is able to apply, including creditors. Regardless of who the administrator is, assets must be divided evenly according to dollar values, and the WA Supreme Court must be satisfied with the application and reasons given for applying.