Things Are Changing for Those Who Die Without a Will

Leonie Carruthers|28th March 2022

Many people believe that if you die without a Will in Western Australia, your estate will either go to the government or to your next of kin. This is generally not the case.

Under the Administration Act 1903 (WA) (“Act”), complex provisions set out how a person’s estate will be divided if they die without a Will.

For example:

  • Where someone dies with an estate worth more than $50,000, leaving their spouse and children, the spouse is entitled to the first $50,000 and a third of the remainder. Whatever is left is divided amongst the children. This could create a difficult situation where the surviving spouse may be left with little in terms of their own financial support;
  • If the deceased didn’t have children, the spouse is entitled to $75,000 and half of the remainder. Whatever is left goes to other relatives;
  • If the deceased was separated but not divorced from their former partner, the former partner will be entitled to the a share as if they were spouse, regardless of the length of time of the separation; and
  • A de facto partner (on the other hand) will only be entitled to a share as a “spouse” if they have lived with the deceased for at least two years.

Apart from some anomalies in how you would expect the estate to be distributed, the amounts set out above were established in the 1980s.

A Bill to amend the Act and increase the amounts of the spouse’s share was first introduced to Parliament in June 2018 but was finally passed by both Houses of the WA Parliament on 22 March 2022. It will shortly be given Royal Assent and become law.

Under the changes to the Act, the spouse’s entitlement will increase to $483,500 where the deceased leaves children or $722,500 if there are no children.  This now lines up with current community expectations in relation to living costs.

Despite these changes, it is critical (especially for those who do not want their estate arbitrarily split between their spouse and children), to have a Will in place. Apart for this, having a Will also avoids difficulties with deciding who should administer the Estate and generally makes it easier to call in and distribute an Estate.

If you need assistance with estate planning, including the preparation of simple or complex Will, please contact us.