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Are you one of those people who have preparing a Will on your to do list (and it’s been there for years)? Read on to find out just what happens to your property if you die without ever getting around to making your Will.

Dying without a Will or with an invalid Will is called intestacy. If someone dies without a valid Will in place the deceased’s property is distributed according to the state law. Our previous state law was the Administration Act 1903 (WA).

A lack of regular review of the Administration Act 1903 (WA) meant that the act had not been amended for approximately 40 years. As we can expect, this Act was not circumstantially appropriate given how much society has changed over the last 40 years.  One of the main items that had not kept up with the times in this Act was that it lacked a sufficient distribution of property for the spouse of a deceased person.

What do the new changes mean?

This has changed with the passing of the Administration Amendment Bill 2021 (WA), which now allows for a surviving spouse or partner to receive $472,000, updated from the previous $50,000 – a very significant change, which is more in line with the current cost of living, if the deceased dies leaving direct descendants such as a child or even grandchild. Furthermore, if the deceased has left no direct descendants than the spouse is entitled to $705,000, updated from the previous $75,000.

This change came into effect in Western Australia on 29 March 2022.

In the past this often meant that a surviving spouse or partner had to make arrangements with his or her children or grandchildren to be able to adequately provide for themselves, and if no appropriate agreement could be reached, then parties had to revert to Supreme Court litigation to resolve issues.

If there are highly unfortunate circumstances, a parent may also lose their child. Whilst nothing can compensate for this loss, the parent is entitled to $56,500, updated from the previous $6,000.

Before these amendments Western Australia had the lowest level of statutory legacies for spouses of any jurisdiction in Australia.

Will the Act need to be continually amended?

With many prevailing factors leading to an especially volatile global economic status, the Administration Amendment Bill 2021 (WA) has sought to include a formula for reviewing the distribution of statutory legacy payments every two years, which prevents this Act from again becoming circumstantially inappropriate.

How many people will this affect?

Since almost 50% of West Australians die without a valid Will, we can celebrate the new changes in the state law governing intestacy. However, with an elder spouse or a young child, intestacy can cause many administrative obstacles and is in no way a replacement for having a valid Will.

If you do have a complex estate, a Will that is tailored for your circumstances may assist considerably in the distribution of your estate instead of a generic intestate procedure.  In fact, even if you believe your circumstances are not very complex it is often best to ensure that your wishes are carried out by having a Will properly drawn up by a lawyer.

Lynn and Brown Lawyers encourages anyone who has questions regarding how their estate may be distributed on death and to get in touch with one of our experienced estate planning lawyers, you can contact us at www.lynnandbrown.com.au or by calling 9375 3411.

This article was authored by Manav Patel and Jacqui Brown.

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