FAQ’s
What is the Probate Process in Australia?
The probate process in Western Australia involves validating a deceased person’s Will and authorising an executor to manage the estate. An application for a grant of probate to the Supreme Court can only be made once the death certificate has been issued. I The application includes the original Will, death certificate, and a statement of assets and liabilities. Once granted, usually within 4-6 weeks, the executor can call in the deceased’s assets, pay debts, and distribute the estate according to the Will. The process ensures the Will’s legitimacy and protects the executor when dealing with the estate.
What happens if you die without a will?
In Western Australia, if you die without a Will your estate is to be administered and distributed according to the Administration Act . The Act sets out who may be entitled to your estate. Depending on the value of your estate and who survives you, the entitled persons could include;
- Your spouse (marital and de facto);
- Children
- Parents, siblings, nieces and nephews;
- Grandparents; or
- Uncles, Aunts or Cousins; and,
- If none of the above apply to you or survive you, your estate will pass to the Government.
How much will it cost to write a Will?
The costs involved in preparing your estate plan depend on the complexity of the advice and documents required. If you have complex assets and structures or complicated beneficiary distributions, for example requiring a trust to be set up to protect the inheritance from either creditors, partners or the beneficiary themselves, this will require a more involved Will and supporting documents. In comparison to a situation where you have simple assets and beneficiaries that can take the gift personally.
At HHG we offer fixed fee pricing for all succession planning documents and can provide you with a fixed fee following an initial meeting to take instructions and determine what is needed to bring your estate plan into effect.
What makes a Will legally binding in Western Australia?
Western Australian law on Wills states that to be legally binding, a Will must meet the following requirements:
- The Will must be in writing.
- The Will must be signed by the testator (the person making the Will) at the end of the document.
- The testator’s signature must be witnessed by at least two people who:
- Are present at the same time.
- Sign the Will in the presence of the testator and each other.
- Provide their full name and address.
- All parties (testator and witnesses) must be together during the signing process.
- The Will must be made voluntarily, without any pressure or undue influence.
- Including a statement that the Will was signed in the presence of two or more witnesses can simplify the executor’s job, though it is not strictly required for validity.
Can you leave a child out of your Will in Australia?
In Australia, disinheriting a child in a Will is possible but complicated. While you can exclude a child as a beneficiary, they will still be eligible to make a claim against your estate . Courts consider factors like the child’s financial situation, the length of estrangement, and attempts at reconciliation. Ultimately, a judge may override any distribution made in you Will, or lack thereof, if your child can proof a need for provision from your estate.
Who can contest a Will?
In Western Australia, there are only a few people who can contest your Will:
- Your current spouse;
- A former spouse;
- Your current de facto partner;
- A former de facto partner;
- Your children or step-children;
- Your grandchildren who were dependent on you and lived in the same house;
- Someone with whom you were living in a close personal relationship with at the time of your death.
What Do You Need to Bring to a Lawyer for a Will?
Before you meet with one of our lawyers, we will always instruct you on everything you’ll need for your first consult. It usually includes the following items:
- Personal identification documents (driver’s licence, passport)
- A comprehensive list of your assets, including:
- Real estate properties
- Bank accounts
- Investments (shares, bonds, etc.)
- Superannuation details
- Valuable personal items (jewellery, artwork, etc.)
- Details of any debts or liabilities
- Names and contact information for:
- Your chosen executor(s)
- Beneficiaries
- Guardian(s) for minor children (if applicable)
- Information about any existing trusts or business interests
- Details of any specific gifts or bequests you wish to make
- Your current Will (if updating an existing one)
- A list of questions or concerns you want to discuss
