If a person dies without a Will the person is said to have died intestate (“in-test-ate”). Their personal estate will be governed by the laws of the jurisdiction (State) in which they resided at the date of their death. Any real estate they own will be governed by the laws of the jurisdiction (State) in which the real estate is situated.
What does this mean?
This means that the Estate is distributed in accordance with rules of the state legislation, rather than according to their intentions or wishes.
Sometimes it is lack of time and people don’t get around to making a Will or a misconception as to the costs and time and effort to make a Will. Other times it could be misinformation, where a person died believing they had a Will in place, but the Will is later found to be invalid, or it fails to deal with all of the estate’s assets properly.
To deal with the deceased’s estate, someone must apply to the Supreme Court for Letters of Administration.
Who can apply for Letters of Administration?
Someone over the age of 18 and of sound mind will need to apply to the Probate Office of the Supreme Court seeking a Grant of Letters of Administration. This person can be a direct beneficiary of the estate or the deceased’s beneficiaries can request that the Public Trustee administer the estate. If there are no direct relatives, then anyone, including a creditor of the estate can apply. The Letters of Administration is really an order of the Supreme Court empowering the administrator to distribute the estate in accordance with the intestacy law.
As we are based in WA we will discuss the WA based rules. You will need to consult the state’s rules where the deceased resided or where the real estate is held if they resided outside of WA.
How is the estate administered in WA?
The rules of intestacy in WA depend on whether the deceased died leaving a surviving spouse or de-facto and/or leaving their own children. The estate rules generally follow lineal descendants.
Western Australian Intestate rule changes from 30 March 2022
There are different rules in WA depending on when the deceased died – before or after 30 March 2022. A brief summary of the rules from 30 March 2022 are as follows:
- If the deceased died leaving a spouse or de-facto and had children then the spouse is entitled to household chattels, the first $472,000 and one third of the remainder. The children are entitled to two thirds of the remainder.
- If the deceased did not have a spouse or de-facto then the children are entitled to the whole estate
There are many other scenarios which we are not covering here however it is important to note that having a Will may alleviate the time, money and emotional energy spent by the deceased’s beneficiaries in abiding by the state laws of intestacy.
Why you should have a Will
Some people think that only the very wealthy or those with complicated assets need wills. There are many good reasons to have a will.
- You can decide who gets what and how much
- You can keep your assets out of the hands of people you don’t want to have them (eg estranged relatives)
- Your heirs will have a faster and easier time getting access to your assets
- You can identify who should care for your children. Without a Will, the courts will decide.
- You can save estate money on taxes and also give gifts and charitable donations which help offset the estate tax.
A Will can be a simple notice of intention as to your wishes after you pass but you must ensure that it is correctly witnessed and documented.
Our last blog discussed what was included in your Estate. Next month’s blog will discuss Binding Death Benefit Nominations from your superannuation fund.
Factual Advice Warning: Any information provided in this website is purely factual in nature and does not take into account your personal objectives, situation or needs. The information is objectively ascertainable and is not intended to imply any recommendation or opinion. This does not constitute financial product advice under the Corporations Act 2001 (Cth).