The grief of losing a loved one is hard enough, but when someone dies without a Will the impact it has on families can be disastrous, writes TGB senior lawyer John Pitman.
It’s not something we like to think about, but death is inevitable for all of us. Taking the time to plan now and create a valid Will, as well as drawing up Enduring Powers of Attorney (EPA) and Enduring Powers of Guardianship (EPG) documents, means that your wishes will be carried out should you become incapacitated or pass away. It is an opportunity to protect your family and ensure you do not leave a legacy of chaos.
When a person dies without a valid Will they are deemed to have died ‘intestate”.
The deceased estate in Western Australia must then be administered in terms of the Administration Act 1903.
There are many and varied consequences of dying intestate, such as:
- You have no identified Administrator of your Estate. This can cause problems if family members are not happy with each other;
- Your assets may not all go to your loved ones;
- Any spouse and children are only entitled to a set proportion of your estate; and if there are estranged children, they become entitled to their part of the estate;
- Where there are minor children, their entitlement to a part of your estate has to be held in trust, usually with an independent trustee, until they attain the age of 18. This could mean that a sizeable portion of your estate is held and cannot be used by your spouse or partner to pay off a mortgage;
- Should a surviving spouse or partner want access to more than their entitlement to the estate and come to an arrangement with the children, if any child is a minor, a court order may need to be obtained approving the arrangement.
The proportional entitlement to a deceased estate in Western Australia is as follows:
- Where the deceased leaves a spouse or partner and children and the net estate is:
- less than $50,000 the surviving spouse get the whole of the estate;
- more than $50,000 (not including household chattels) the surviving spouse get all household chattels and the first $50,000 and one third of the balance and the children get the remaining two thirds.
- Where the deceased leaves a spouse or partner and no children but has parents and siblings and the net estate is:
- less than $75,000 the surviving spouse get the whole of the estate;
- more than $75,000 (not including household chattels) the surviving spouse get all household chattels and the first $75,000 and one half of the balance and the remaining other half is divided as to the first $3000 to each parent plus one half of the balance and the brothers/sisters get the remaining half balance.
There are other entitlements which are not included in this article.
Enduring Powers of Attorney
It is equally important to have a valid EPA. An EPA gives the appointed attorney the ability to look after your financial affairs and your property, in the event you become incapacitated and unable to look after yourself.
The EPA can be drafted to come into immediate effect or it can come into effect upon an order being obtained from The State Administrative Tribunal.
The EPA should be registered at Landgate within 3 months of signing to be effective.
Should you become incapacitated and not have a registered EPA, and you need to sell the property, say to place the incapacitated person in care, your family could not deal with that person’s property without getting a court order to be appointed an attorney. This will be an expensive exercise.
The incapacitated person’s bank account could also be frozen if it was not a joint bank account.
Enduring Powers of Guardianship
This document gives your appointed attorney the power to make decisions about your health and well being. This could include what medication and treatment you should receive and can include the decision as to whether you should be resuscitated.
The benefits of having a valid Will, EPA and EPG are clear and ensuring they are in place is one of the most generous things you can do for your family, while the consequences of not doing so are vast.