What Is Probate

What is Probate?

Probate is the process of proving and registering in the Supreme Court of Western Australia (often called “the Probate Office”) the last will of a Deceased. It is generally referred to as making an application for a Grant of Probate. The application is usually made by the person named in the will as the Executor.

Where there is no will, an Application is made for Letters of Administration.

The result is practically identical: The Probate Office issues an official document embossed with the seal of the Supreme Court upon it. This “proves” that the person named in the Grant of Probate or Letters of Administration is authorised to deal with the estate.

Why is it necessary to get a Grant of Probate or Letters of Administration?

Because it is necessary for an executor to be able to obtain title to the Deceased's property in order to collect and protect it for the benefit of the beneficiaries.

It is important to note that you can only make an application for a Grant of Probate or Letters of Administration in the Supreme Court of Western Australia if there are assets in Western Australia. If you have money and/or property in different states of Australia or in another country, you may need to seek legal advice.

It's not always necessary to make an application for probate or Letters of Administration if:

Property (such as a house, bank account or shares) is jointly owned;

The only assets held by the deceased are

  • bank accounts (generally speaking most banks will release up to $15,000.00 – some up to $50,000.00 or more – without requiring a Grant of Probate);
  • or shares (and the value of any shareholding is considered to be a “small holding” -generally, less than $10,000.000).

What happens if the Executor named in the will has already died?

In this situation an application is made for Letters of Administration (with Will Annexed). This is also done where the named executor renounces, or has lost capacity, or does not wish to act. Generally, one of the adult beneficiaries of the will applies.

It is important to note that the right to be an exectuor comes from Will itself, not the Grant of Probate. The Grant simply legitimises it. This means that from the time a person dies until the Grant is made the named executor can still attend to things such as arranging the funeral, cleaning and securing the house, dealing with the funeral directors etc. However, it is wise to be aware of the sensitivities of taking actions to the exclusion of other family members, particularly if there is any doubt about the validity of the will (and thus your right to be an executor).

What happens when someone dies?

Usually, the first thing that happens is that someone contacts a funeral home.

Quite often, it is the case that the named executor is the spouse of the deceased and is in no fit state psychologically to deal with these issues. Quite often another family member or family friend assumes this role. This can have repercussions later because the funeral undertakers require someone to sign for the funeral expenses and they call this person the “executor”. They also notify the cemetery that this person is the executor. When disputes arise, for example between the second wife and children from the first marriage as to the contents of the headstone, or location of burial it can happen that this “executor's” wishes are given preference by the funeral home.

The only legal executor is the person named in the will and/or the person who is granted letters of probate.

Death Certificate: The role of the informant

Often it is not the spouse or next of kin that provides this information and quite often information is wrong or incomplete. This can cause problems later, for example, when the spelling of the name in the death certificate is different from the spelling in the will. How is a Grant of Probate or Letters of Administration obtained?

Obtaining a Grant of Probate or Letters of Administration is usually done in one of three ways:

  1. By a Corporate executor (usually named in the Will);
  2. By the named executor instructing a solicitor;
  3. By the named Executor or beneficiary doing it themselves. Although this is not a difficult process but family members may find it emotionally challenging. The Supreme Court now has an online application process that you can use to prepare the necessary documentation (see www.justice.wa.gov.au/ProbateOnlineForms)

A Grant cannot be applied for until at least 14 days after the death of the Deceased. If the will provides that the named executor must survive the deceased by 28 or 30 days (as is often the case) then that period must also expire before that executor can apply.

Information & documentation required

  1. An Affidavit from the Executor confirming the validity of the Will and setting out the assets and liabilities of the deceased (as at the date of their death). Note: Superannuation may or may not be an asset of the estate – this will usually depend on the decision made by the Superannuation fund.
  2. A formal request to the Court to issue the Grant (called a Motion), including a death certificate and the original will.
  3. Payment of the filing fee.

See our list of required information for a guide as to the information required.

How do I obtain Letters of Administration?

Obtaining Letters of Administration can present difficulties. You will almost certainly have to get legal advice. It is necessary to establish who is entitled in the particular circumstances to inherit the deceased's estate In Western Australia Section 14 of the Administration Act sets this out (see:http://www.austlii.edu.au/au/legis/wa/consol_act/aa1903173/s14.html).

Obtaining Letters of Administration is more difficult than getting a Grant of Probate because you have to “clear off” any potential beneficiaries. This means satisfying the Probate office who the persons are that are entitled under Section 14. You will also need to obtain the written consents of any other person who is entitled in the estate.  This can lead to disputes as to who should apply.

Because of these difficulties it is always recommended that people in “blended families” or in a de facto relationship have a will.

It currently takes about 3-4 weeks for a Grant of Probate or Letters of Administration to issue from the Probate Office if there are no problems<./p>

Dealing with an Estate

Once a Grant of Probate or Letters of Administration have issued, the estate can be dealt with. This means writing to banks to close accounts and transferring any property into the Executor/Administrator's name. Visit www.landgate.wa.gov.au/corporate.nsf/web/How+to+guides+for+changing+details+on+a+title for more information & relevant forms regarding dealing with property.

More information

Please contact Perth Probate Solicitors if you require more information about our Probate services or would like to make an appointment with one of our solicitors.