When someone dies, they may leave a Will appointing one or more executors to manage their affairs. The executor’s duties typically include:

• making funeral arrangements
• identifying, collecting and valuing the deceased’s assets
• notifying service providers and government authorities of the death

• paying any outstanding debts and taxes
• transferring property and distributing assets according to the Will

In many cases, the executor may need to apply for a grant of probate. Probate is the legal process of requesting the Supreme Court to validate the Will and authorise the executor to manage and administer the deceased’s estate.

While probate is often a necessary step after someone dies, there are circumstances when it may not be required. Understanding these situations can help save time, money, and additional work for the deceased’s family.

This is general information only and you should obtain professional advice relevant to your circumstances.

Situations when probate may not be needed

Whether or not probate is needed depends on the type and value of the assets held by the deceased, how they are held, and any relevant policies of the asset holders for the release of those assets.

In Western Australia, a grant of probate is usually required if the deceased held assets, shares or real estate in their sole name, or owned real estate as a tenant in common with another party. An application for probate may be made where the deceased held such assets in Western Australia.

There are some cases where probate may not be required. Common examples are:

Small estates

If the deceased person did not own real estate and their assets were relatively minor and easily transferable (i.e., a modest bank balance and some personal belongings), probate may not be necessary.

Typically, the institution holding the asset determines whether probate is required, and the criteria may differ between different asset holders. Most financial institutions have policies regarding the release of funds to beneficiaries. For example, if the value is below a specific threshold (say, $50,000) a bank may release funds upon presentation of a death certificate and other relevant documents, such as a copy of the Will. In such cases, the bank will usually require an indemnity releasing them from liability from any claims.

Jointly owned assets

Where the deceased owned joint assets with someone else, for example, a family home owned with a spouse as joint tenants, the surviving owner is automatically entitled to the deceased’s share which can be transferred by lodging the relevant application and documentation with Landgate. This is known as the “right of survivorship” and the asset does not technically form part of the estate available for distribution.

Similarly, if the deceased had joint bank accounts with a surviving person, the accounts can usually be transferred to the surviving party on proof of death.

Assets with designated beneficiaries

Some assets, such as life insurance policies and superannuation funds, allow the deceased person to nominate an eligible beneficiary to receive the proceeds upon their death. In such cases, the proceeds can be paid directly to the nominated beneficiary without a grant of probate. Each case, however, is assessed individually and a trustee may sometimes require a grant of probate before determining entitlements to a superannuation fund or insurance policy.

Determining if probate is needed or recommended

If you are unsure whether probate is required in your situation, you can contact the various entities holding the deceased’s assets. In some cases, it may be recommended to apply for probate such as where there are doubts concerning the validity of a Will. It is advisable to seek legal advice from a lawyer who can assess the specific circumstances of the deceased’s estate and advise you on the best course of action.

Executors must comply with the terms of the deceased’s Will and the relevant legislation when administering an estate. Before distributing assets, they should ensure that the estate liabilities are met and there are no outstanding claims. An estate lawyer can explain your obligations and help protect you from potential liability by recommending steps you can take before administering the estate.

Checklist and guidance for executors

• Review the Will: Check if the Will names an executor and if it provides clear instructions on how the assets are to be distributed.
• Identify the assets: Make a list of the deceased’s assets and their estimated values.
• Check ownership: Determine how the assets are owned (e.g., sole ownership, joint ownership, trust).
• Consult with institutions: Contact banks, financial institutions, and other organisations holding the deceased’s assets to ask about their requirements for release.
• Seek legal advice: If you are unsure about any aspect of administering an estate or the process of applying for probate if required, we recommend consulting an experienced estate lawyer.

Conclusion

Determining whether probate is needed requires consideration of the deceased’s assets and circumstances. While probate is often a necessary part of administering a deceased person’s estate, there are situations where it may not be required. Understanding these exceptions can help streamline the process and reduce the burden on the deceased’s loved ones. If you are unsure whether probate is needed in your situation, seek professional legal advice to ensure you are taking the appropriate steps.

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

If you or someone you know would like more information, or needs 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