Probate in Western Australia is governed by the Administration Act 1903 (WA). To receive a grant of Probate in WA, there must be a Will made by a person (called a ‘testator’) that nominates another person to administer the Will (called an ‘executor’), which specifies which people are to benefit under the Will (called ‘beneficiaries’).
What is Probate in Western Australia?
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 the 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.
How do you apply for Probate in Western Australia?
To obtain Probate of a Will in WA, an application must be made to the Supreme Court of Western Australia at any time after 14 days from the death of the deceased. A solicitor, executor or a person entitled to the administration of the estate may make the application.
You or your lawyer can apply for a grant of Probate by preparing and filing an online application or by submitting an application in person at the Probate Office or by posting an application. As at 4 July 2016, the Probate filing fee is $338.00.
For 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.
There is no requirement for publication of a legal notice in WA. However, you are required to submit to the Probate Office an inventory and valuation of assets and liabilities of the deceased at the time of death.
What are ‘Letters of Administration’ and ‘Letters of Administration with the Will Annexed’?
If a person has passed away without a valid Will, the court may grant Letters of Administration to a person who would be a beneficiary of the deceased’s estate. This person will usually be the deceased spouse, parents, siblings, children or grandchildren.
If a deceased person has a Will but the Will does not name an executor or the executor named is not able or willing to apply for Probate, then the court may grant Letters of Administration with the Will Annexed to a person who would be a beneficiary of the deceased’s estate.
As applications for Letters of Administration and Letters of Administration with the Will Annexed are complex and there are no standard forms, applicants should see a lawyer for assistance.
These applications can be made to the Supreme Court of Western Australia after 14 days from the deceased’s death.
What is the executor’s role?
The executor’s role is to manage, administer, direct and dispose of property under the Will.
The executor’s duties include, but are not limited to, the following:
- Burying the deceased;
- Proving the Will by applying to the court for a grant of Probate or Letters of Administration;
- Administering the estate according to the law;
- Paying the debts of the estate; and
- Distributing the balance of the estate to the beneficiaries.
Additional obligations of the executor may include:
- Taking care of business interests;
- Safeguarding any income;
- Investing money not currently required;
- Collecting any valuables; and
- Insuring all property.
Furthermore, the executor will need to value the estate and keep a list of all the valuations. The estate may consist of the following:
- Business interests;
- Personal effects;
- Real estate;
- Property sales;
- Debts due; and
- Debts owing.
The executor is required to notify all the 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.
What is the priority of payment of expenses once Probate is obtained?
Once the executor obtains a grant of Probate, the assets must first be collected before any payment from the estate is made. Funeral, testamentary and administration expenses have priority over all other payments.
Once this has occurred, the executor may pay the debts of the estate.
If the Will disposes of any property that has a mortgage, charge, lien or other money owing on it and the testator has not specified in the Will, by deed or in any other document how this is to be paid, then all the beneficiaries are primarily liable for discharging the debts before any distribution of the property.
When all debts have been paid the executor may then distribute the remaining assets amongst the beneficiaries according to the testator’s intentions.