Text Size a a PrintPrint this page

Dying without a will

 

This is general information about the law. You should seek legal advice about your individual situation.

"Intestacy" is where a person dies:

  • without leaving a will, or
  • leaving a will which, for some reason, does not deal with all their property (estate).

With this information, the word "estate" means all the land, property and assets of a deceased person.

What happens if someone dies without a will?

If a person dies without a will, the law sets out how their property will be shared out after all the debts have been paid.

Without a will, it can be hard to work out who should apply for permission to deal with the deceased's estate.

Who can apply for permission to deal with the deceased's estate if there is no will?

Generally, anyone over the age of 18 who is entitled to a share of the estate can apply to the Probate Office of the Supreme Court to administer and distribute the property.

However, for any Aboriginal person who met the now deleted qualification requirement of the Aboriginal Affairs Planning Authority Act 1972 (WA) [AAPA Act] and who died without a will prior to 7 August 2013 when the Act changed, by operation of the AAPA Act the estate vests in the Public Trustee. Persons entitled to distribution under this Act are not permitted to apply for letters of administration. Enquiries need to be made to the Public Trustee. The Department of Aboriginal Affairs (WA) has a brochure and more information on its website about how an Aboriginal person's affairs are administered if they die without a will.

If a person entitled to a share of the estate is not available the court can appoint another person or body.

We are not sure if there is a will.  Where are wills commonly stored?

It is important to search for a will. Useful places to check are:

  • among the deceased's papers and documents
  • the deceased's bank
  • the deceased's insurance company
  • the deceased's lawyer
  • the deceased's accountant
  • the Public Trustee
  • trust corporations such as Perpetual Trustees WA Ltd.

If you still can't find a will, you may have to advertise in the daily newspaper. If everything fails and no will is found, the deceased will have died intestate.

Who inherits when there is no will?

The Administration Act 1903 (WA) sets out rules about how the property is shared out. The rules are complicated and change, depending on:

  • the value of the estate and
  • the type and number of family members the deceased had.

De facto partners of any sex now have inheritance rights under the Administration Act 1903 (WA). You will need to establish your relationship was a de facto relationship. If you lived as a de facto partner with the deceased for at least two years immediately before their death you are now entitled to a share in the estate in certain circumstances. If your partner dies without a will, you should seek legal advice about your rights.

For more information on what is a de facto relationship, see De facto and same-sex relationships.

If you are a child of the deceased and your parents were never married it won't necessarily affect your right to claim part of the estate. In some cases you may be required to prove the relationship to the Probate Office. Get legal advice about this.

In some circumstances a parent may be the same sex partner in a de facto relationship. If you think this affects you get legal advice.

It is only when a person dies leaving no next of kin and no will that their estate will be handed over to the State.

What if these provisions do not provide adequately for dependants?

Where the rules do not make reasonable provision for certain dependants, they can apply to the Supreme Court. When and how this can be done is set out in the Family Provision Act 1972 (WA).

For more information, see Challenging an unfair will.

What are letters of administration?

If a person dies without a will, the spouse, de facto partner or next of kin should apply to the Probate Office of the Supreme Court for letters of administration. This does not apply to small estates (see below). A personal representative (an Administrator) will be appointed by the court to finalise the deceased's affairs.

The application is quite complicated and may require a lawyer.

If the application is successful, the court grants letters of administration to someone who then has the authority to deal with the estate.

What if it is a small estate?

In small estates (not more than $10,000), the Probate Office of the Supreme Court may be able to assist you. Usually you would be interviewed at the office and assisted with making your application for letters of administration. The only payment is for court fees to the Probate Office.

You can post your application. You should use registered post and keep a copy of all documents you send.

If you live more than 80 kilometres from Perth, you can lodge your application at your local Magistrates Court.  The registrar of the court may be able to assist you with preparing your application.

Does an administrator have to be appointed?

It is not always necessary to get the court to appoint an administrator.

If the value of the assets is small and only includes household items and small sums of money, it may be possible for the spouse, de facto partner or next of kin to distribute the assets without getting letters of administration.

In working out the total value of the estate, you do not take into account life insurance policies or the value of land or houses held in joint tenancy (usually with the surviving spouse or de facto partner).

Banks and building societies with less than $6,000 in the deceased's name can release the money to pay funeral expenses and to pay the balance to the surviving spouse, parent or child.

What if there is no one to administer the estate?

When there is no one who will administer the estate or there is no next of kin, the Public Trustee or a trust corporation may be able to do the work.

What are the duties of an administrator?

The main duties of the administrator are:

  • control the property
  • list the assets and their value
  • pay the funeral expenses, taxes and other debts
  • prepare a final account showing all payments in and out of the estate and set out how the assets have been dealt with
  • distribute the estate according to law.

An administrator must be at least 18 years of age. They must administer a deceased estate as required by law and can be held personally responsible for failing to do so.

Where can I get more information?

  • Contact the Public Trustee WA on 1300 746 116 for assistance with deceased estate administration.
  • Go to Lawyers for information on finding a lawyer and questions you should ask.
  • Contact the Citizens Advice Bureau on (08) 9221 5711 for assistance in drafting letters of administration for a fee.
  • Contact the Law Society of WA on (08) 9324 8600 for a referral to a lawyer who specialises in this area.
  • Aboriginal artists can get more information about dying without a will and an intestacy kit for WA from the Artists in Black website.

       

Last reviewed: 08/08/2013

Last Modified: 19/09/2013

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.