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Probate in Western Australia
Probate in Western Australia is governed by the Administration Act 1903. A grant of probate can be made when a person has died leaving behind a valid will and nominated a person as to act as the executor of that will. This page deals with grants or probate in WA.
What is probate?
Probate is a certificate granted by the Probate Office of the Supreme Court of Western Australia. It means that the deceased’s will has been proved as valid and registered, and that an executor has been granted authority to administer the deceased estate.
Probate may be granted in solemn form or in common form. Solemn form is granted when the validity of the will is disputed, and contentious proceedings have or are to shortly commence. Common form is granted when there is no dispute, and the will can be proved without a hearing or witness evidence.
Applying for probate?
To obtain a grant of probate, an application must be made to the Supreme Court after 14 days have passed since the death of the testator. An application for probate can be made by preparing and filing an online application or by submitting an application in person at the Probate Office or by posting an application.
A fee is payable for filing this application.
In straightforward applications, the Probate Office will issue grants of probate in approximately two to three weeks from the receipt of the application. More complex matters may take longer for probate to be issued.
Unlike in some other jurisdiction, there is no requirement t publish a notice prior to applying for probate in WA. However, the Probate Office must be provided with an inventory and valuation of assets and liabilities of the deceased at the time of death.
Letters of Administration and Letters of Administration with the Will Annexed
If a person passes away without a valid will or with a will that does not name an executor who is in a position to act, the court will not make a grant of probate. Instead, it will grant a person the authority to administer the estate either by making a grant of Letters of Administration or by making a grant of Letters of Administration With the Will Annexed.
If a person dies without a will, they are said to die intestate. In this situation, the court may issue a grant of Letters of Administration to a person who is entitled to inherit from the estate under the laws of intestacy. This is usually the deceased’s next of kin.
If a deceased person has a will that does not name an executor or that names an executor who is not able or willing to apply for probate, then the court may grant Letters of Administration with the Will Annexed to any person over 18 who would be a beneficiary of the deceased’s estate.
These applications can be made to the Supreme Court of Western Australia after 14 days from the deceased’s death.
Applications for Letters of Administration and Letters of Administration with the Will Annexed are complex and applicants should see a lawyer for assistance.
Executors
The role of an executor is to administer the deceased estate. This may include managing and disposing of assets in accordance with the provisions of the will, as well as making other arrangements.
The executor must value the estate and keep a list of all the valuations. They must notify all beneficiaries named in the will that the deceased has passed away and what benefits they are entitled to under the will. The executor may also need to complete and lodge income tax returns and obtain a clearance from the Australian Tax Office.
The executor must pay the debts of the estate before the distribution of any assets. Paying the debts of the estate may involve the executor having to sell assets of the estate.
Other tasks that an executor may need to perform are:
- making arrangements for the funeral;
- paying the debts of the estate;
- taking care of business interests;
- safeguarding income;
- investing money not currently required;
- collecting valuables;
- selling assets; and
- insuring property.
What happens after a grant of probate?
Once an executor obtains a grant of probate, the assets must be collected before any payment from the estate can be made. Funeral, testamentary and administration expenses have priority over all other payments. Once these matters have been finalised, the executor may pay the debts of the estate.
If the will disposes of property that has a mortgage, charge, lien or other money owing on it and the testator has not specified how this is to be paid (in the will, by deed or in any other document,) then the estate is primarily liable for discharging these debts before any distribution of the property can occur.
When all debts have been paid, the executor may distribute the remaining assets amongst the beneficiaries according to the provisions of the will.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
