When a person dies without leaving a valid Will, they are said to have died intestate. In Western Australia, an intestate estate is administered in accordance with the Administration Act 1903 (WA), which sets out who is entitled to administer the estate, and who is entitled to benefit.
By way of contrast, when a person dies leaving a valid Will, the Will sets out how the estate should be administered and who is entitled to the assets of the estate. Where the Will does not deal with all of the deceased's property, the Administration Act will also apply in relation to the distribution of those assets not accounted for in the Will.
Generally, a Grant may be necessary in order for the executor of a Will or administrator of an intestate estate to effectively administer the estate, particularly when real property needs to be dealt with.
In 2022 there were significant amendments to the Administration Act, particularly in relation to the entitlement of spouses. Some of these amendments include the following.
Where a deceased dies leaving a spouse and children
Prior to the amendments, if an individual died intestate leaving a spouse and children, and the property of the estate is valued at more than $50,000, the spouse was entitled to the household chattels together with the first $50,000, and one third of the residue of the estate. The children would then be entitled to the remaining two-thirds in equal shares.
Following the amendments, spouses will now be entitled to the first $472,000, plus one third of the residue, provided the net value of the intestate property exceeds the value of $472,000. The children would then be entitled to the remaining two-thirds in equal shares.
Where the deceased leaves only one child and a spouse, the spouse will be entitled to the household chattels, the first $472,000, and half of the residue, with the child receiving the other half.
Where deceased dies leaving spouse, parents and siblings, but no children
Where the deceased leaves no children but leaves a spouse, parents and siblings, the spouse will be entitled to $705,000 plus one half of the residue. As to the remaining half, the surviving parents will receive $56,000 and half of the residue, with the siblings receiving the remainder of the residue. The above provisions would be applicable in circumstances where the estate is in excess of $705,000
This is a significant increase from the previous $75,000 and $6,000 which the spouse and parents would have received, respectively.
As evident, the amendments significantly overcome the previous inadequate provisions for spouses, including de facto and same sex partners, and are a welcome change as such.
Probate applications and the administration of estates can be complex and should not be undertaken without prior legal advice. If you require advice or assistance with an application for a Grant of Probate or Letters of Administration, or the administration of an estate, you are welcome to contact our office on (08) 9200 1833 to make an appointment to speak with one of our lawyers.