What is Probate?
A Grant of Probate is a certificate issued by the Supreme Court of Western Australia that attaches a copy of a deceased person’s Will.
The Grant provides the Executor of the Will with the legal authority to:
a) call in the assets of the deceased;
b) pay the deceased’s debts;
c) deal with any claims against the deceased’s estate;
d) transfer or sell the deceased’s property; and
e) distribute the balance of the deceased’s estate in accordance with the terms of the Will.
Other types of Grants
If an adult dies without leaving a valid Will or if the Executor named in the Will has died or is unable or unwilling to act as Executor, then it is necessary to apply to the Supreme Court for Letters of Administration instead of a Grant of Probate.
Obtaining Letters of Administration from the Court can be costly and time consuming as the person seeking the grant must locate and obtain the consent of all of the deceased’s beneficiaries to the appointment of Administrator of the estate. If the beneficiaries fail to agree on who is to be appointed, the Court will decide who will be the Administrator of the estate.
It is often necessary for a lawyer to be engaged to obtain Letters of Administration.
How Do I Apply For Probate?
It is strongly advisable to engage a lawyer experienced in obtaining Probate and dealing with estate administration to assist with an application for a Grant of Probate or Letters of Administration, especially if:
a) there is evidence of incapacity of the deceased prior to death (e.g. dementia noted on the Death Certificate);
b) all Executors have died or refuse to act; or
c) there is any dispute amongst Executors or beneficiaries.
The first task of the Executor is to locate the last signed original Will of the deceased. This may involve an extensive search of the deceased’s papers, contacting solicitors that the deceased may have used or advertising.
The next requirement is to identify all of the assets and liabilities of the deceased. A thorough review of the deceased’s papers is necessary, but the Executor should also contact any banks, other financial institutions, businesses or organisations that the deceased may have dealt with. This can be difficult where there are little or no comprehensive records or where assets may be interstate or overseas.
Ascertaining and finalising taxation, litigation, estate liabilities, business debts and entities of the deceased can take some time, often months or even years.
Once the details of the estate assets and liabilities have been compiled and a statement of estate assets and liabilities prepared, a motion and affidavit signed by the Executor is prepared (usually by a solicitor) and lodged at the Supreme Court together with the last original Will of the deceased. The Court reviews all the documents and once satisfied that these are in order, the Grant of Probate or Letters of Administration will be issued to the Executor or Administrator of the estate.
If the Supreme Court is not satisfied with the form or content of information provided, then it will seek further information by way of requisition.
Where the deceased has left adequate records of their assets and liabilities and their last Will has been properly prepared and located by the Executor, it is a relatively simple exercise to obtain a Grant of Probate. Where the Will cannot be found, is not valid, has not been signed properly, the Executor has died, or all assets and liabilities cannot be easily identified, a lawyer will likely be required and the process of obtaining Probate or Letters of Administration may take longer.
This is only general information and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.