Intestacy

Intestacy occurs where a person dies without dealing with any or all of his or her property. The most common example of intestacy is where person dies leaving no will. In this case, the person is fully intestate. Where a person makes a valid will but fails to deal with all of their property there may be a partial intestacy. For example, Mr Smith passes away. At his death he owns a house in Mt Lawley, a boat and has money in a Bankwest savings account. Mr Smith made a valid will which states only “I leave my house to my son Sam Smith” but does not deal with his other property. In this case, Mr Smith is partially intestate. Although he has made a valid will, it does not mention his boat or savings.

Where a person dies intestate in Western Australia, the Administration Act 1903 (WA) applies. This act sets, in section 14, out who is entitled to a share in the deceased’s estate and in what amount. The table in this section works like a hierarchy, depending on whether the deceased leaves behind a spouse (husband or wife), children, siblings or parents. Usually, a spouse is entitled to a lump sum plus a share in the remainder of the estate. The amount of the lump sum depends on the size of the estate and whether the deceased leaves surviving children, siblings or other relatives. Where a person dies intestate leaving no spouse, children or other relatives including uncles, aunts or cousins, the whole of the deceased’s property goes to the Crown (the state government).

For example, Mr Smith passes away leaving no will. He leaves a wife Beth and two sons, Sam and Max. Mr Smith’s estate is valued at $1,000,000. Using the table in section 14, Beth would be entitled to all of Mr Smith’s household chattels, $50,000 and a one third share in the rest of the estate. After Beth’s $50,000 is taken out, the remaining two thirds of the estate would be divided between Sam and Max. Beth, Sam and Max would receive approximately $316,000 each.

Since the insertion of section 15 in 2002, provided that a deceased has no husband or wife, a de facto partner of the deceased who was in a de facto relationship for at least 2 years immediately before the death is entitled to the same share as a husband or wife under the act. First, the court must determine if a de facto relationship exists. De facto relationship is defined in section 13A of the Interpretation Act 1984 (WA). This can be a complicated matter as there are a range of factors to take into consideration to indicate if such a relationship exists. A family lawyer in Perth can provide advice and assistance about this matter. 

Intestacy does not mean that the deceased’s property will not be distributed. The property will be distributed in accordance with legislation. Of course, the act cannot always reflect the wishes of the deceased. The only way to ensure that your property is distributed the way that you wish is to make a valid will.

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