What happens if you die without a will in WA?

When intestacy rules apply

If the deceased has left a will that only covers part of their estate, or where the Court does not recognise a document as a valid will, intestacy rules will also apply. When intestacy takes place, the estate is distributed only after all debts have been paid, and the law sets out who receives what’s left. Someone also has to be given legal authority to deal with the estate first, which can take a long time. Where there’s no will (and so no executor named), this is done by applying for letters of administration, the no-will equivalent of probate. Our guide on how long probate takes explains this more and where it sits in the wider timeline.

Why dying without a will matters

Beyond delays, dying without a will means a fixed legal formula decides who inherits, and it may not match what the deceased person actually wanted. Disputes are more likely when there are no clear requests to follow, and the people closest to you aren’t always protected, as stepchildren and unproven de facto partners have no automatic right to inherit.

Example: Chris, a sole provider for his family, died without a will

He'd lived with his partner for 18 months and had two stepchildren he treated as his own. Because Chris's partner falls short of the two-year de facto threshold, and stepchildren have no automatic right to inherit, none of the three may be entitled under intestacy, even though they were his closest family.

What if I’m not sure there’s a will?

Before assuming someone doesn't have a will, it's definitely worth checking, as a valid will completely changes how the estate is handled. Common places to look include the deceased's home and personal belongings, home safes or safety deposits, their bank, accountant's records, the WA Will Bank or any online will-registration service they could have used.

Even a will that only covers part of the estate is really important, as everything else will follow intestacy rules. If a valid will is found, the estate will usually be administered according to its terms. Depending on whether an executor has been appointed and is able to act, the appropriate application may be for probate or letters of administration with the will annexed. Any part of the estate the will doesn’t cover is still distributed under intestacy rules.

What laws apply if there’s no will?

In WA, intestacy is governed by the Administration Act 1903 (WA), which sets out exactly how an estate is divided when there’s no will. The rules are complex and not one-size-fits-all. As Legal Aid WA explains, how the estate is split depends on the value of the estate and the type and number of family members the deceased left behind.

De facto partners have inheritance rights under the Act, but you need to establish a legitimate de facto relationship, typically having lived together for at least two years immediately before death. Because entitlements like this depend on the exact family situation, this is an area where advice on your specific circumstances matters.

Who can apply to deal with the estate where there’s no will?

Where there’s no will, someone entitled to a share of the estate applies to the Probate Office of the Supreme Court of WA for letters of administration. This gives them authority to administer and distribute the estate. The person who should apply is usually the deceased's married or de facto partner, or their next of kin. Anyone over the age of 18 who is entitled to a share can apply. If no entitled person is available, the court can appoint another person or even a body as administrator.

Applying for letters of administration is complicated and may require a lawyer. Mistakes can cause delays or be costly, so it's a good idea to seek legal advice during this process. Those entitled to apply can also ask the WA Public Trustee to administer the estate for a fee, instead of doing it themselves.

Where can I get more information?

• Legal Aid WA: Dying without a will: an overview, plus downloadable infosheet. (Note: Legal Aid WA does not advise on inheritance matters.)
• Supreme Court of WA: Wills & Probate: the court that handles letters of administration.
• WA Public Trustee: can administer an estate on your behalf for a fee.
• Planning ahead with a testamentary trust: this is the way to avoid intestacy altogether. A testamentary trust can offer additional protection and flexibility for your beneficiaries, helping you manage how and when they receive their inheritance.‍
• Talk to Forbes Kirby: If someone has died without a will, or you want to make sure your own requests are properly protected, our estates team can guide you through letters of administration, or help you put a will in place so your estate never has to be sorted out this way. Please get in touch if you’d like to speak to someone about your specific situation.‍

This article is general information only and is not legal advice. Every situation is different, so please get specific advice for your circumstances before acting.