Probate is a grant made by a Court that validates the Will of a deceased person. This is the official process that allows the executor named in the Will to deal with the deceased’s estate.

An executor’s role typically includes calling in the deceased’s assets , paying the deceased’s liabilities, and distributing the estate according to the Will.

This article provides an overview of the probate process in Western Australia where there is a valid Will. The information is general only and we recommend arranging an appointment with one of our lawyers to obtain professional advice relevant to your circumstances. Executors are often guided by lawyers, who can advise on correct processes to ensure the estate is properly administered and the executor is protected from liability. An experienced lawyer can also deal with any complications or claims made on the estate.

Is a grant of probate necessary?

In Western Australia, a grant of probate is usually required if the deceased held assets, such as bank accounts, shares or real estate in their sole name, or owned real estate as a tenant in common with another person.

There are some cases where probate may not be required, for example:

• for small estates comprising of only personal items and/or a motor vehicle; and

where the deceased’s assets comprise of only joint assets, such as a joint bank account or real estate owned as a joint tenant with another person.  In these cases, the surviving person is automatically entitled to the deceased’s share in the joint asset. Process for obtaining Probate

To obtain probate, the following documents are filed with the Supreme Court of Western Australia:

• motion for a Grant of Probate;
• affidavit sworn by the executor with Statement of Assets and Liabilities;
• original Will; and
• original Death Certificate.

The affidavit sets out the date of birth, date and place of death of the testator, and his or her usual place of residence. It identifies the Will and Death Certificate and includes additional information regarding the testator’s marital status and the witnesses to the Will. The affidavit may also explain any irregularities such as different spellings of names, or the death of a beneficiary named in the Will. Additional documents may be required to explain unusual circumstances.

Protecting executors

Executors have a duty to uphold the provisions of the Will and distribute the assets according to the testator’s wishes. They must act with care and diligence and may be held liable for losses sustained through negligence or delay.

Before distributing assets, executors must also ensure the estate liabilities are met and there are no outstanding claims. Publishing a notice of intended distribution gives potential claimants and creditors a specific timeframe within which to make any claim against the estate. This helps protect the executor from liability provided the requisite notice period has expired before distributing assets.

Your lawyer will explain the relevant timeframes and the most appropriate means of protecting you, as the executor, from liability.

Administering the estate – dealing with the assets and liabilities

The distribution of assets should follow the Will’s provisions.

Executors and beneficiaries may need legal and/or financial advice when transferring/receiving assets to ensure that transfer duty, capital gains, and other taxes are considered.

Additional considerations are necessary if the estate involves trusts or business interests.

Before distributing assets, executors should ensure that:

• the debts of the estate have been ascertained and paid in accordance with the statutory order for payment of debts;
• funds are retained in the estate for contingent expenses such as taxes and professional fees;
• all beneficiaries have been identified and provision (if relevant) made for holding a minor beneficiary’s share in trust;
• the minimum notice of distribution period has expired, and any claims have been considered and dealt with; and
• a proposed distribution statement has been prepared and approved by all beneficiaries.

How TLS can help

Applying for probate and administering an estate is an important function and can be daunting for an executor. The experienced lawyers at TLS can provide professional advice to help alleviate the burden by ensuring the correct processes are followed, any complications are dealt with, and the estate is correctly administered.

If you would like to TLS to prepare a probate application, our online Probate assistant is the best, first step.

If you would like more information, or need help or advice regarding the probate process in Western Australia, please feel welcome to contact us on 08 6383 5551 or email re*******@*ls.law.