A Grant of Probate is a court order which is produced by the Probate Registry of the Supreme Court of Western Australia which confirms the named executors and gives them legal authority to administer the estate under the terms of the deceased’s will.

To prove the Will, your lawyer will lodge:

• Will

• Death certificate

• Affidavit

• Motion paper

• Other court documents

The Court often issues requisitions. Requisitions are questions by the Court regarding the application for Probate. The answers to requisitions are sworn by the applicant before an authorised witness. The Court cannot issue a grant if the deceased did not leave any property in Western Australia.

Whether a Grant of Probate is required is determined by the value of the deceased’s estate and the type of assets and ownership.

• If the deceased held real property in their sole name then you must apply for probate.

• If the deceased held real property as joint tenants with someone else then you must apply for probate.

• If the superannuation of the deceased will be paid to the estate then you will need a grant of probate.

For cash assets, things are often more uncertain as each bank may set its own threshold for which they require a Grant of Probate.

For Westpac account holders all estates with a combined account balance equal to or greater than $100,000 will require either a Grant of Probate/Letter of Administration.

For Bankwest the combined balance must exceed $50,000 for a grant to be needed.

The executors named in the will can apply for a Grant of Probate. If the executors cannot or refuse to apply then the main beneficiaries under the will may apply to be appointed as administrators of the estate. This is called an Application for Letters of Administration with the Will annexed.

If you have been appointed an executor in the will of the deceased, you should apply for probate within 2 months from the date of the testator's death.

If you fail to apply within that period, the Court may, upon the application of any person interested in the estate, or of any creditor of the testator, grant administration with the will annexed to that applicant.

The Public Trustee may also seek a grant of representation in this case but only after three

months from the date of death.

The Public Trustee, or any person interested, may apply to the court for an order for the

removal of an executor or administrator, and for an order to administer by the Public

Trustee the land or goods or estate left un-administered.

It is a Supreme Court order confirming the administrator’s authority to deal with the estate of a person who has died with no Will.

If the deceased has left a will but there is no executor because they:

• had died

• refuse to act

• cannot act or

• were not appointed correctly in the will

then the order is called letters of administration with the will annexed. An administrator has similar responsibilities to those of an executor.

The executor is responsible for making the funeral arrangements if the deceased has not already made those arrangements. The executor should follow any directions left by the deceased about the funeral arrangements but is not bound to do so.

Things to consider include:

• Whether the body is to be buried or cremated.

• If the body is to be buried and where.

• If the body is to be cremated, whether the ashes are to be scattered or retained.

• The nature and format of the funeral service.

• Who they should notify about the service.

If the executor is not an immediate family member, then the executor should consult with the family about the funeral arrangements. The reasonable cost of the funeral is an expense of the estate, but the executor should be careful not to incur expenses beyond the available funds in the estate.

No, an Executor cannot sell or transfer real property of the deceased's estate before the grant of probate has issued.

An executor to whom probate has been granted or administrator may, for the purposes of administration, sell, transfer or lease such real estate with or without a power of sale.

A grant of probate is required to transfer ownership of the property to the purchaser.

However, the property can be advertised for sale with a real estate agent and the executor can sign the contract of sale signed before the grant of probate has issued.

The executor can sign the transfer of land only after the grant of probate has issued.

When a sole proprietor or tenant in common landowner dies the executor must lodge a transmission application at Landgate.

The effect of this application is to show the name of the executor on the property title in their capacity of executor replacing the name of the deceased proprietor.

The transmission application can be lodged at Landgate only after the grant of probate has issued.

Any contract of sale signed by the executor before the grant of probate must be entered subject to the executor obtaining the grant of probate within a certain period.

Yes, but only if the deceased person was not survived by any of her/his:

• children

• parents

• siblings

• children of predeceased siblings.

If the deceased intestate person was survived by 1 or more children then the estate is shared between the surviving spouse and those children.

If the deceased intestate person was only survived by their spouse and parents or siblings or both then the estate is divided between the surviving spouse and the parents or siblings or both as the case may be.