Intestacy in WA: in Western Australia, if you die without leaving a valid will, your estate will be distributed in accordance with legislation, namely, the Administration Act 1903. “Intestacy” is the term given to this situation, and the person who has died without leaving the will is known as an “intestate”. In order to administer the deceased’s estate, an eligible person will need to apply for Letters of Administration.
A partial intestacy can occur even if you leave a valid Will. This commonly happens when a person fails to dispose of the entirety of his or her estate under the Will. Many people will write a Will contemplating only the assets they own as at the date they write the Will, without contemplating the potential for their estate to grow or change, and therefore be different as at the date of their death. In these situations, the executor named in the Will may apply for Letters of Administration with the Will annexed.
Section 14 of the Administration Act 1903 contains a table which specifies who, of your family and dependants, receives your estate when you die and what percentage they receive. For example:
- If a person dies leaving a spouse, the spouse will receive all the household chattels;
- If a person dies leaving a spouse and children but the estate is worth no more than $50,000, then the spouse gets the entire estate;
- If a person dies leaving a spouse and children and the estate is worth more than $50,000, then the spouse will get the first $50,000 plus one third of the estate, and the children will get the remaining 2/3 of the estate (divided equally);
- If a person dies leaving no spouse, no children, no sibling, no parents, no grandparents, no nieces or nephews, no cousins and no aunts or uncles, then the whole of the estate passes to the Crown.
When a person dies leaving a valid Will, that Will will appoint an executor to manage estate affairs after death. Where a person dies intestate, without a Will, then certain people named under the Administration Act 1903 are entitled to bring an application for Letters of Administration and to have themselves appointed as the administrator. An administrator has the same roles and responsibilities as an executor, however unlike an executor who may have his or her powers listed in the Will, an administrator has only those powers that the Administration Act 1903, the Trustees Act 1962 and the common law impose on him or her.
Section 25 of the Administration Act 1903 stipulates that the following people are eligible to apply for letters of administration (provided they are also over the age of 18 years and have mental capacity):
- One or more of those people who are entitled to receive the estate upon distribution; ie., anyone who is named in section 14 as a beneficiary of the intestate estate; or
- In the event that no one named in section 14 brings an application when cited (requested to do so), then anyone, including a creditor of the estate, may apply.
The rules and procedures for applying for Letters of Administration are found in the Non-Contentious Probate Rules 1967. Applications are made to the Probate Registry of the Supreme Court of Western Australia and can be made online if preferred. The proposed administrator must swear on oath a number of things including:
- That searches were done for a Will and none was found
- That the deceased died leaving certain relatives (eg., a spouse but no children; or no spouse or children but parents)
- That he or she is eligible to receive distribution from the estate in accordance with the laws on intestacy (or is a creditor)
- That anyone else who is entitled to receive distribution has been informed of the application for Letters of Administration and consents to a grant being made in the proposed administrator’s favour; and
- That he or she will administer the intestate’s estate according to the law.
The proposed administrator must also annex a Statement of Assets and Liabilities which lists and values those assets and liabilities that form part of the Estate.