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Intestacy In Western Australia
In Western Australia, if a person dies without leaving a valid will (intestate), their estate will be distributed under the laws of intestacy set out in the Administration Act 1903. This article deals with intestacy in Western Australia.
Partial intestacy
A person can die wholly or partly intestate.
Partial intestacy occurs when a person dies leaving a valid will, but the will fails to dispose of their entire state. This may be because they wrote the will contemplating only the assets they owned at the time and failed to consider the potential for their estate to grow or change.
Administrators of intestate estates
When a person dies leaving a valid will, that will appoints an executor to manage estate affairs after death. Where a person dies intestate, a person may bring an application for Letters of Administration and 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 listed in legislation and common law.
Applying to administer an intestate estate
In order to administer a wholly intestate estate, an eligible person will need to apply for Letters of Administration.
In order to administer a partially intestate estate, the person named as executor in the deceased’s will may apply for Letters of Administration with the Will annexed.
The person who applies may be a person who is entitled to inherit from the estate. Alternately, they may be a creditor of the deceased. If neither of those categories of person is available, then any other person may apply.
Applying for Letters of Administration After Intestacy
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.
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 a 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 annex a Statement of Assets and Liabilities which lists and values those assets and liabilities that form part of the estate.
After an application has been filed, the Probate Registry will consider the documentation and, if satisfied with it, will issue a Grant of Letters of Administration. This is an order of the Supreme Court authorising the administrator to administer and distribute the estate in accordance with the law.
How property in intestate estates is divided
Section 14 of the Administration Act 1903 specifies who, of the family and dependants of a deceased person, is entitled to inherit from their estate.
Under this provision, the distributed of the estate will depend on the size of the estate and the family members that the deceased is survived by.
Under this provision:
- if a person dies leaving a spouse and children but the estate is worth no more than $472 000, then the spouse will receive the entire estate.
- if a person dies leaving a spouse and children and the estate is worth more than $472 000, then the spouse will get the first $472 000 plus one third of the remainder of the estate, and the children will get the remaining two thirds 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.
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After an application has been filed, the Probate Registry will consider the documentation and, if satisfied with it, will issue a Grant of Letters of Administration. This is effectively an order of the Supreme Court which authorises the administrator to administer and distribute the estate in accordance with the law regarding intestacy in WA.
