What Happens When Your Spouse Dies Without a Will in WA and You Have Minor Children

Losing a spouse is an incredibly difficult time, and navigating the legal complexities that follow can be overwhelming—especially when unexpected financial and legal challenges arise. For example, imagine Sarah, a mother of two young children, who suddenly loses her husband without a Will in place. Overnight, she finds herself navigating a complex legal process while also worrying about how to maintain financial stability for her family. Without clear instructions on how her husband’s estate should be managed, Sarah faces delays in accessing essential funds, uncertainty over her home ownership, and the challenge of ensuring her children’s inheritance is legally protected.

Understanding the laws surrounding intestacy can help prevent such challenges. If your spouse’s estate exceeds the statutory threshold under the Administration Act 1903 (WA) and you have minor children, it’s crucial to understand how the estate will be distributed and what legal steps may be required.

Understanding the Intestacy Laws in WA

When someone dies without a valid Will, their estate is distributed according to the intestacy provisions of the Administration Act 1903 (WA). The law sets out a formula for how assets are divided, which may not align with what your spouse would have wanted.

What Is the Statutory Threshold?

As at March 2022, the Administration Act provides a statutory legacy amount that the surviving spouse is entitled to before the remainder of the estate is divided. This threshold exists to ensure that the surviving spouse receives a guaranteed minimum portion of the estate before other beneficiaries inherit. It is intended to provide financial security and stability, particularly in cases where the deceased’s assets would otherwise be distributed according to a rigid formula. The threshold amount is periodically reviewed and adjusted by the government to reflect changes in the cost of living and economic conditions. The current threshold is $472,000, but this figure may change over time.

How Is the Estate Divided?

The following is an example of how the estate may be divided where the deceased is survived by a spouse and two minor children. The outcome may differ depending on the number and type of surviving family members:

The spouse receives:

The first $472,000 (the statutory legacy amount);
- One-third (1/3) of the remaining estate;
- Personal chattels of the deceased (household effects, furniture, etc.).
The minor children receive:
- Two-thirds (2/3) of the remaining estate, to be held on trust until they turn 18.

If there are additional surviving children or other eligible relatives, the distribution will vary based on the intestacy provisions of the Administration Act 1903 (WA).

Protecting Minor Children’s Inheritance

If the estate includes minor beneficiaries, steps must be taken to ensure their inheritance is protected. This can typically be done through one of two options:

Providing a guarantee from two guarantors who will assume financial responsibility for ensuring the children receive their inheritance.

Establishing a Section 17A trust, where trustees manage the funds on behalf of the minor children until they turn 18.

Option 1: Guarantee from Two Guarantors

If this option is chosen, two guarantors must provide the Court with an Affidavit of Justification, which demonstrates their financial capacity and suitability. The guarantors must personally guarantee that the children will receive their inheritance when they reach 18 years old.

Key Considerations:

Each guarantor must disclose their assets, liabilities, and financial standing.
The guarantors assume personal liability if the inheritance is not paid.
This option may be challenging if suitable guarantors are unavailable or unwilling to take on financial liability.

Option 2: Section 17A Trust

Alternatively, a Section 17A trust can be established. This allows a trustee to manage the inheritance on behalf of the children until they turn 18.

Key Considerations:

Two trustees must be appointed—at least one must be independent of the children’s daily care.
At least one trustee must have relevant experience as a trustee, financial adviser, accountant, or lawyer.
A trust deed must be prepared, outlining how the funds are to be managed and distributed.
The funds remain protected and professionally managed, reducing financial risk.
The trust structure allows for responsible asset management and ensures that funds are available for the children’s needs as they grow.

Which Option Is Right for You?

Choosing the right approach depends on your unique circumstances, including the estate’s value, family dynamics, and financial considerations. Many people assume that their spouse will automatically inherit everything or that intestacy laws will fairly distribute their assets—however, this is not always the case. Seeking legal guidance is crucial to ensure that your choice aligns with the Court’s requirements and protects your children’s inheritance. Seeking legal guidance is crucial to ensure that your choice aligns with the Court’s requirements and protects your children’s inheritance.

At Couldwell Legal, we have extensive experience assisting families through the complexities of intestacy and estate administration. One of our recent clients, James, came to us after unexpectedly losing his wife, leaving behind their two young children. Without a Will in place, James faced significant legal hurdles in accessing his wife’s estate and ensuring his children’s future was secure. Through our guidance, we helped him establish a Section 17A trust, ensuring that his children’s inheritance was properly managed while also giving him financial stability. If you are in a similar situation, we can help you navigate these challenges and find the best solution for your family. We can help you understand your options and take the necessary steps to safeguard your children’s future. Contact us today to discuss the best way forward.

What You Should Do Next

If your spouse has passed away without a Will and their estate exceeds the statutory threshold, you will likely need to:

Apply for Letters of Administration with the Supreme Court of WA.
Determine how to legally protect the minor children’s inheritance, either through a guarantee or a Section 17A trust.
Seek legal assistance to prepare the necessary affidavits or trust documents to satisfy the Court’s requirements.

If you are unsure about which option is best or need assistance with the legal process, contact Couldwell Legal today for legal guidance tailored to your situation.

Planning Ahead: Avoiding Intestacy

If you are concerned about what will happen to your family and assets if you pass away without a Will, now is the time to take action. Estate planning ensures that your wishes are respected and that your loved ones are provided for without unnecessary legal complications.

At Couldwell Legal, we provide comprehensive estate planning services, including drafting Wills, setting up trusts, and advising on strategies to protect your assets for future generations. By taking proactive steps now, you can spare your family the burden of dealing with intestacy and ensure your estate is distributed according to your wishes.

Article published in March 2025

Disclaimer

The content of this website is provided for your assistance and is of a general information nature only. You must not rely on any information or material contained on this website as legal advice or as a substitute for legal advice.

Whilst we will make every effort to keep the content of this website up-to-date, there may be delays, errors or omissions as a result of amendments to legislation and modifications to case law. We make no warranty or representation that the information and other material will be at all times up-to-date. No responsibility is accepted for any action taken without advice, by readers of the material contained on this website.