Your Legal Roadmap When a Spouse Dies Without a Will in WA

What to Do When Your Spouse Dies Without a Will in Western Australia 

The loss of a spouse is an emotionally challenging time, and dealing with legal matters can add to the stress. If your spouse dies without a Will in Western Australia, their estate will be distributed according to the Administration Act 1903 (WA). This article provides an overview of the legal process and steps you should take to manage your spouse’s estate. 

Of course, ideally everyone should have a Will but for various reasons people do die without a Will and in this case, the following law applies. 

1. Understanding Intestacy Laws in Western Australia

When a person dies without a valid Will, they are said to have died intestate. In such cases, the estate is distributed according to a statutory formula under the Administration Act. The way the estate is divided depends on the surviving relatives of the deceased. 

Distribution of Assets 

The intestacy rules allocate the estate as follows: 

• If the deceased leaves a spouse and children: The spouse is entitled to the first $501,000, household effects, and one-third of the remaining estate. The children share the remaining two-thirds equally. 

• If the deceased leaves a spouse but no children: The spouse receives the entire estate. 

• If there is no spouse but children: The children inherit the estate in equal shares. 

• If the deceased has no spouse or children: The estate goes to parents, siblings, or other close relatives in a specific order of priority. 

• If no relatives can be found: The estate passes to the State Government of Western Australia. 

2. Applying for Letters of Administration

Since there is no Will, an executor is not appointed. Instead, an eligible person must apply to the Supreme Court of Western Australia for Letters of Administration to gain legal authority to manage the estate as a Court appointed Administrator. 

Who Can Apply? 

The following individuals can apply, in order of priority: 

1. The surviving spouse or de facto partner 
2. Children of the deceased 
3. Other close family members (parents, siblings, etc.) 

How to Apply 

To apply for Letters of Administration, you must: 

1. Provide a Death Certificate; 
2. Provide a Marriage Certificate (if applicable). 
3. Submit an Affidavit of Applicant in support of the Court application detailing the deceased’s assets, liabilities, and setting out relevant family members. 
4. Advertise the application in the Western Australian Government Gazette. 
5. Lodge the documents with the Supreme Court and pay the required filing fee. 

If approved, the court will issue a Grant of Letters of Administration, allowing the administrator to collect assets, pay debts, and distribute the estate according to intestacy laws. 

3. Managing the Estate

Once Letters of Administration are granted, the administrator must: 

• Identify and collect the deceased’s assets (bank accounts, property, superannuation, etc.); 

• Pay any outstanding debts, funeral costs, and taxes; and 

• Distribute the estate according to the intestacy rules. 

If disputes arise amongst beneficiaries, legal advice may be required to resolve them. 

4. Superannuation and Life Insurance

Superannuation and life insurance do not automatically form part of the intestate estate. They are paid to the nominated beneficiary/ies or to the deceased’s estate, depending on the fund’s rules and whether or not a binding death benefit nomination was made by the deceased. If no binding death benefit nomination was made, the trustee of the superannuation fund decides on distribution, after considering dependents and relevant family members. 

5. Seeking Legal Assistance

Managing an intestate estate can be complex, especially in cases involving multiple heirs, blended families, or disputes. Seeking legal advice from a wills and estates specialist lawyer can help ensure the correct procedures are followed. 

Conclusion 

If your spouse dies without a Will in Western Australia, their estate will be distributed under intestacy laws. The surviving spouse, children, or other close relatives may need to apply for Letters of Administration to manage the estate. Seeking legal assistance can help navigate the complexities of obtaining a grant from the Court and subsequently administering the estate.  

About the Author: Hannah is a graduate of both the University of Western Australia and Notre Dame University, having completed a Bachelor of Arts (major in ‘Law and Society’’ and minors in History and Psychology) in 2016 and a Bachelor of Laws in 2018.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. For personalised legal guidance, consult one of our Estates lawyers at Lynn and Brown Lawyers.