Making a Will – Issues arising from not having one

By May 12, 2023 No Comments

What is a will?


A will is a legal document that sets out who will receive your property and possessions when you die. People often create wills before or after marriage or at different relationship stages. There is no one correct time to make a will. Here at Joss Legal, we assist clients in creating and registering valid wills. If you have a family or any other people financially dependent on you, having a valid will gives you the best chance of ensuring your assets go to them.


Dying without a will

Situations can arise where a person dies without a will, known as dying intestate. Dying without a will means that someone must apply for your deceased estate. The current law is set out in the Administration Act 1903 (WA). The rules around how property is shared depend on the estate’s value and the type and number of family members the deceased had. How an estate is distributed differs if the death occurred before or after 30 March 2022.


Issues that arise from dying without a will are more to do with how the estate is distributed and the tensions it may cause for the surviving family. The estate may not be distributed to the most important people to the deceased. Dying without a will can also cause a delay and additional expense to the surviving family regarding who is to be appointed as administrator and whether the estate provides for the people closest to the deceased.


How can a deceased estate be distributed?

If the deceased had no spouse or children, their estate is distributed to other direct relatives, i.e. a parent, sibling, aunt or uncle, in order and percentage determined by law. This statutory formula sets out who benefits from the estate and in what proportions. If there are no direct relatives, then the whole estate will pass to the state government.


People in de facto relationships also have inheritance rights under the Administration Act 1903 (WA). Parties must establish their relationship as de facto before they are entitled to a share of the estate in certain circumstances.


Requirements to apply for a deceased estate

To apply for a deceased estate, you must be over 18 years of age and sound mind. If you are entitled to the share of the estate, you will need to apply to the Probate Office of the Supreme Court to administer and distribute the property. You will need to apply for letters of administration, giving you the authority to deal with the estate.


The most common situations that give rise to an application for a grant of letters of administration are:

  1. When there is no will; and
  2. There is a will, but the nominated executors are unable to act. This means that an administrator must be appointed.


Here at Joss Legal, we can assist you with drawing up a will or assist you with letters of administration. If you require assistance for either or this or any other legal matter, contact us on (08) 6559 7480 or at