Australia: After your death, will Big Brother get your house, car, computer and pets?

Last Updated: 3 December 2013
Article by Anne Wood

Western Australians may be unaware that if they die without a will (or with a defective will) and they have no relatives who are entitled to inherit under the Administration Act 1903, the State Government can end up with all or part of their estate.

The Administration Act 1903 sets out which relative/s are entitled to inherit an estate in cases of intestacy (that is dying without a will) or partial intestacy (that is dying without a will which distributes the whole of the estate).

Section 14 of the Administration Act 1903 sets out the inheritance entitlements in such cases by reference to who has survived the deceased. The section starts with "dies leaving husband or wife" and ends with "dies leaving no husband or wife and no issue, parent, brother, sister, child of a brother or sister, grandparent, uncle, aunt or child of an uncle or aunt" (Note that "Issue" here means descendent). We will refer to these people as "entitled relatives".

In the case of a death with no entitled relative, section 14 stipulates that "the whole of the intestate property passes to the Crown by way of escheat."

The Escheat (Procedure) Act 1940 sets out the procedure by which the State of Western Australia would take the estate. The process appears short but is in fact long because before the State makes application to the Supreme Court to take the estate, the State (and subsequently the Supreme Court) must be convinced that there are no entitled relatives. Yes, that does mean that your Grandmother's brother who walked out of the family in 1947 after that dispute over the split up over the farm will need to be found.

Establishing whether there are any entitled relatives may involve a considerable amount of family research. This is not the sort of family research where you can be reasonably confident that you have found the right person; you have to be very confident that you have found them. Witnesses and addresses on birth, marriage and death certificates have to be cross checked with other documents. This can mean that additional such certificates need to be sourced from other states or other countries, together with war service and immigration records.

For example, if your Grandfather put his age up for the First World War and down for the Second, he is going to be difficult to track and more documents will have to be sourced to confirm that the two soldiers are the same people.

Add to this that a surprising number of people did not in the past use their correct name. In fact, even now many married (or newly single) women have identification documents in two names. You can begin to imagine the scale of the undertaking.

Long legal processes usually mean large legal bills payable by the estate (assuming the estate has sufficient funds). This in turn reduces the eventual payout to the relevant entitled relative or to the State of Western Australia.

The moral of the story? There are two;

  • Everyone should have a will.
  • Have your will drawn up by a lawyer or, if you have drawn up the will yourself, at least seek legal advice on it because if drafted incorrectly, unforeseen circumstances (like a beneficiary dying before you) can result in a complete or partial intestacy. As you now know, this may result in an unexpected windfall for the State of WA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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