When Is Probate Not Required in Western Australia?

When someone passes away, they typically leave behind a Will appointing one or more executors to manage their affairs. Family members and executors often find themselves asking, “when is probate required?” shortly after a loved one’s death.

The executor’s duties are significant and typically include:

• Making funeral arrangements
• Identifying, collecting, and valuing the deceased estate
• 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 instances, the executor must apply for a grant of probate. Probate is the formal legal process of requesting the Supreme Court to validate the Will and authorise the executor to manage and administer the estate.

However, while probate is a common step, there are specific circumstances where it may not be legally required. Understanding these nuances can save families time, money, and administrative stress.

Please note, this is general information only and you should obtain professional advice relevant to your circumstances. Contact TLS today.

Probate Requirements in Western Australia

Whether or not probate is needed depends entirely on the type and value of the assets held by the deceased, how those assets are held, and the internal policies of the asset holders (such as banks) regarding the release of funds.

In Western Australia, a grant of probate is usually mandatory 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 is generally made where the deceased held these assets specifically within Western Australia.

Exceptions: When a Grant of Probate May Not Be Needed

There are several scenarios where the Supreme Court does not need to be involved. If the estate is relatively straightforward, the executor may be able to administer assets without a formal grant. Some common of examples of when probate is not required are listed below:

Small Estates and Banking Thresholds

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 financial institution holding the asset determines whether a grant of probate is required, and these criteria differ between institutions. Most banks have specific policies regarding the release of funds to beneficiaries. For example, if the account balance is below a specific threshold (often between $20,000 and $50,000, though this varies), a bank may release funds upon presentation of a death certificate and a copy of the Will.

In such cases, the bank will usually require the executor to sign an indemnity. This document releases the bank from liability regarding any future claims on those funds.

Jointly Owned Assets and Property

Where the deceased owned joint assets with someone else, for example, a family home owned with a spouse as “joint tenants”, probate is generally not required for that specific asset. Under the “right of survivorship,” the surviving owner is automatically entitled to the deceased’s share.

To formalise this, the surviving owner must simply lodge a survivorship application and death certificate with Landgate. In this scenario, the property does not technically form part of the estate available for distribution under the Will, as it passes directly to the joint owner.

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

 

Assets with Designated Beneficiaries

Some assets operate outside the standard estate distribution process. Life insurance policies and superannuation funds often allow the policyholder to nominate an eligible beneficiary.

If a valid binding death benefit nomination is in place, the proceeds can be paid directly to the nominated beneficiary without a grant of probate. However, trustees of superannuation funds have strict rules; if the nomination is non-binding or invalid, the trustee may require a grant of probate to determine who is entitled to the funds.

Motor Vehicles

Motor vehicles are another asset class that can often be transferred without probate. The Department of Transport in Western Australia generally allows for the transfer of a vehicle license to a beneficiary or spouse provided they supply the death certificate, a copy of the Will, and the relevant transfer forms.

Validating Wills and Handling Intestacy

A major factor in estate administration is the presence of a valid Will. Wills provide the roadmap for the executor. However, if a person dies without a Will (known as dying “intestate”), or if the Will is deemed invalid, the process changes.

In these situations, there is no executor to apply for probate. Instead, the next of kin or a substantial creditor must apply for letters of administration. This document functions similarly to a grant of probate but is issued when there is no Will. The person appointed to manage the estate in this scenario is referred to as the administrator rather than the executor.

Determining if Probate is Needed or Recommended

If you are unsure whether probate is required in your situation, the first step is to contact the various entities holding the deceased’s assets. Ask them explicitly what their requirements are for releasing assets.

Even if not strictly required for asset release, there are cases where applying for probate is recommended for legal protection. For example, if there are doubts concerning the validity of a Will or potential family disputes, obtaining a grant of probate offers the executor protection against personal liability.

It is highly advisable to seek legal advice from a specialised probate lawyer. They can assess the specific circumstances of the deceased’s estate, interpret the Will, and advise you on the most efficient course of action.

Checklist and Guidance for Executors

Administering an estate involves significant responsibility. Executors must comply with the terms of the deceased’s Will and relevant legislation. Before distributing assets, they must ensure that estate liabilities are met and there are no outstanding claims.

Here is a guide to help you navigate the process:

• Review the Will: Check if the Will names you as an executor and provides clear instructions on asset distribution.
• Identify the Assets: Create a comprehensive inventory of the deceased’s assets, including real estate, bank accounts, shares, and personal items, along with their estimated values.
• Check Ownership Structures: Determine how the assets are owned (e.g., sole ownership, joint tenants, tenants in common, or held in trust).
• Consult with Institutions: Contact banks, insurers, and share registries to ask about their specific requirements for releasing assets or transferring ownership.
• Seek Legal Advice: If you are unsure about any aspect of the administration or the application process, consult an experienced estate lawyer.

Final thoughts

Determining whether probate is needed requires careful consideration of the deceased’s assets, the value of the estate, and how those assets were owned. While probate is often a necessary part of administering a deceased estate, the exceptions regarding joint assets and small estates can significantly streamline the process.

Understanding these exceptions can reduce the administrative burden on the deceased’s loved ones during a difficult time. If you are unsure whether probate is needed in your situation, TLS is here to provide professional legal advice to ensure you are taking the appropriate steps.

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.