Wills & estates
What Happens If Someone Dies Without a Will in WA?
Direct answer: When someone dies without a valid will in Western Australia, the estate is distributed under the intestacy rules in the Administration Act 1903 (WA), and somebody has to apply to the Supreme Court for letters of administration before anything can be dealt with. The statutory order is fixed. It takes no account of what the deceased said they wanted, of who cared for them, or of a family's own sense of what would be fair.
What intestacy means
An estate is intestate where there is no will at all, and partly intestate where a will exists but does not deal with everything the deceased owned. Both situations bring the statutory rules into play for whatever is not validly disposed of.
A will can also fail even though it exists - because it was not signed or witnessed properly, because it was revoked, or because the deceased lacked capacity when it was made. In each case the result is the same: the statutory order applies.
Who can apply to administer the estate?
With no will there is no executor, so no one has automatic authority. An eligible person applies to the Supreme Court of Western Australia for letters of administration, and priority broadly follows entitlement to the estate - the surviving spouse or de facto partner first, then children, then other relatives. Where more than one person is eligible, the family should agree who applies, because competing applications are slow and expensive.
Until the grant is made, nobody can sell the house, close accounts of any size, or deal with a share portfolio. That gap is the practical cost of intestacy, and it can run for months.
How the estate is distributed
The Act sets a fixed order. In broad terms:
- a surviving spouse or de facto partner with no children generally takes the estate, subject to entitlements of the deceased's parents or siblings in defined circumstances;
- where there is a spouse or de facto partner and children, the estate is divided between them - the partner receives the household chattels and a statutory legacy set by regulation, plus a share of the remainder, with the balance going to the children;
- children take equally where there is no surviving partner, with a deceased child's share generally passing to their own children;
- where there is no partner and no children, the estate passes to parents, then siblings, then more remote relatives in a defined order;
- if no eligible relative can be found, the estate can ultimately pass to the State.
The statutory legacy figure is set by regulation and has been amended, so it should be confirmed as at the date of death rather than taken from an older summary.
Where intestacy produces results families do not expect
- Blended families. A partner and children from an earlier relationship share the estate under a formula. Where the main asset is the family home, that can force a sale of the home the partner lives in.
- De facto partners. A de facto partner can be entitled, but the relationship has to be established as a matter of evidence. A partner who was never on the title and never named anywhere may have to prove the relationship at the worst possible time.
- Stepchildren. A stepchild who was never legally adopted is generally not a child for intestacy purposes, however close the relationship was.
- Estranged relatives. The order does not care about estrangement. A relative the deceased had not spoken to in decades can inherit ahead of a friend or carer who did everything.
- Minor beneficiaries. A child's share is held on trust until they reach majority, which brings its own administration and cost.
Family provision claims still apply
Intestacy does not prevent a family provision claim under the Family Provision Act 1972 (WA). An eligible person who has not been adequately provided for by the statutory distribution can apply to the court, within six months of the grant. That is a genuine route for a partner or a dependent left in difficulty by the formula, and it is time-limited.
What to prepare
- the death certificate;
- evidence of the relationship to the deceased - marriage certificate, birth certificates, or evidence of a de facto relationship;
- a full list of assets and liabilities with values at the date of death;
- title searches for any real property, showing how it is held;
- superannuation fund details and any nomination;
- a family tree identifying everyone who might be entitled;
- confirmation that a search for a will has been made, including with any solicitor the deceased used.
The search for a will matters. A will found after a grant of letters of administration creates a serious and avoidable problem.
How Legal Care Australia can help
We confirm whether a will exists, advise on who should apply, prepare and lodge the application for letters of administration, work out the statutory entitlements as at the date of death, advise a de facto partner on establishing the relationship, and deal with a family provision claim where the statutory result leaves someone without adequate provision.
Next step: bring the death certificate, what you know about the assets, and the names and relationships of the surviving family.
Official sources
General information only, not legal advice. Entitlements depend on the family circumstances and on the law as at the date of death.