Changes to intestacy laws in Western Australia

Insights6 Sept 2023

We explain the changes to WA’s intestacy provisions when they were amended to increase the distribution thresholds for family members of a deceased on intestacy.

By McLane Edinger and Casey Bombara

An intestacy, or partial intestacy, occurs where a person has died without a valid Will, or their Will distributes only part of their estate. In these situations, statutory provisions apply to determine how the estate, or balance of the estate in the case of a partial intestacy, is to be distributed amongst the deceased’s surviving family members. In Western Australia, section 14 of the Administration Act 1903 (WA) (Act) sets out the entitlements of the deceased’s family on intestacy.

On 30 March 2022, WA’s intestacy provisions were amended to increase the distribution thresholds for family members of a deceased on intestacy. Prior to this, no changes had been made to the distribution thresholds in the Act since 1982.

In summary, before the changes were introduced, if a person died without a Will, but left:

a spouse (or de facto partner) and children, the spouse was entitled to the first $50,000 of the estate, together with interest at 5% per annum, and one third of the remainder of the estate;
a spouse (or de facto partner) but no children, the spouse was entitled to the first $75,000 of the estate, together with interest at 5% per annum, and one half of the remainder of the estate; or
no spouse (or de facto partner) or children, but parents (or siblings), the parents (or siblings) were entitled to the first $6,000 of the estate and one half of the remainder of the estate.

What are the changes?

The changes to WA’s intestacy provisions now provide that if a person dies without a Will, but leaves:

a spouse (or de facto partner) and children, the spouse is now entitled to the first $472,000 of the estate (or, if there is a declared sum applicable, that sum), together with interest at 5% per annum, and one third of the remainder of the estate;
a spouse (or de facto partner) but no children, the spouse is now entitled to the first $705,000 of the estate (or, if there is a declared sum applicable, that sum), together with interest at 5% per annum, and one half of the remainder of the estate; or
no spouse (or de facto partner) or children, but parents (or siblings), the parents (or siblings) are now entitled to the first $56,500 of the estate (or, if there is a declared sum applicable, that sum) and one half of the remainder of the estate.

These amounts are also reviewed by the Minister every two years, allowing for the relevant sum to be varied as economic conditions and community expectations change.

How do the changes apply?

The changes apply to persons who pass away on or after 30 March 2022. Those who passed away prior to this date are subject to the old distribution thresholds.

Do I need a Will?

While the changes to WA’s intestacy provisions help to manage some of the financial issues and inequities that arise for a deceased’s family on intestacy, it is important to remember that they are only a default mechanism and should not be used as a substitute for a valid Will.

Dying without a valid Will creates uncertainty and is more likely to result in significant delays, additional costs and disputes between family members as to the administration of your estate, at an already difficult and stressful time. A valid Will is the best way to help ensure that your assets are protected and dealt with in accordance with your wishes.

This article was written with the assistance of Brittany Forsyth, Law Graduate.