Executor Duties for Deceased Estates in Western Australia

After a person dies someone has to look after the assets of that person and pay the person's debts. Although the person is no longer here, his or her affairs must be finalised and the person to finalise the affairs is appointed by the Will of the deceased.

Where a person is appointed by a Will, that person is called "an executor" under Western Australian law.

An executor is chosen by the person making the Will to carry out their wishes in managing their estate, and is responsible for the administration and distribution of assets to beneficiaries according to those wishes. An executor may be a friend, a relative, or a professional such as a Perth estate lawyer.

Most people are unaware of the complexities and time involved in administering an estate in Western Australia and may find the role to be a burden. This guide explains key executor responsibilities when managing a deceased estate in WA.

Legal Framework in Western Australia

In Western Australia, executor duties are governed by the Administration Act 1903 (WA) and the Non-contentious Probate Rules 1967 (WA). These laws establish the legal process for administering deceased estates and outline the responsibilities of executors.

What are the legal steps for deceased estate administration in WA?

The executor of a Will may need to make an application to the Supreme Court of Western Australia for Probate. This is usually done with the help of a lawyer. Probate is a Court order declaring a deceased's Will valid and that the person named in the Will as the executor can finalise the deceased's affairs.

It is not always necessary to get a Grant of Probate in WA. The need for a Grant by the Courts has been relaxed over the years, although an application for a Grant is still necessary in many cases.

When do I need to apply for Probate in Western Australia?

The requirement to apply for a Grant of Probate will depend upon the nature and value of the assets of the estate. In Western Australia, major banks including Westpac, CBA, ANZ and NAB generally require a Grant of Probate when the total value of solely held accounts exceeds $100,000, though this threshold varies between institutions.

To determine whether a Grant is needed, the person appointed executor in the will must contact the organisations with which the deceased held assets to determine the requirements of those organisations for transfer of those assets to the executor or the beneficiaries. This process is more efficiently handled through an experienced probate lawyer in Perth.

Where a dispute does or is likely to arise over the estate, a person appointed as executor would be wise to apply for a Grant of Probate. Where a person does not have the right to deal with an estate, the person can become personally liable to the beneficiaries.

Step-by-Step Guide: How to apply for Probate in the Supreme Court of WA

Anyone appointed an executor under a Will must firstly determine the deceased's assets and debts. Once that is known the executor can then determine how the assets can be transferred to the beneficiaries.

When making a probate application to the Supreme Court of Western Australia, the executor must follow these steps:

1. Lodge a formal application with the Court with an affidavit (a sworn statement) containing:

   • Details about the executor

   • Certain details about the deceased person

   • Details about the estate

   • The original Will

2. Do a search of the Registry records to indicate a previous Grant has not been made

3. Provide a certified copy of the death certificate

4. Pay the filing fee ($408 as of 18 May 2025)

The Supreme Court of Western Australia Probate Registry typically processes straightforward applications within 6-8 weeks of filing. Complex estates may take longer to receive approval.

Protecting Executors: Advertising for Creditors

Under section 63 of the Trustees Act 1962 (WA), executors can protect themselves from personal liability by advertising for creditors. This involves placing a notice in a newspaper and the West Australian Government Gazette, giving creditors 30 days to make claims against the estate.

While not mandatory, this step is highly recommended as it shields executors from liability for unknown debts if they later distribute the estate. Your estate lawyer can arrange this essential protection.

Paying Estate Debts and Distributing Assets to Beneficiaries

Any debts of the estate must be paid before the estate is distributed. Then the executor distributes the estate in accordance with the Will.

After the Grant of Probate from the Supreme Court Registry has been made, evidence of the Grant must be sent to the various places where the deceased's assets were held (i.e. the deceased's banks or share registries). Those institutions then transfer the assets as directed by the executor or the executor's lawyer.

Any land in the sole name of the deceased can be transferred to the executor or the beneficiary by lodging the Grant of Probate with Landgate (WA's land registry), together with an application to transfer the land. This property transfer process in WA requires careful attention to legal requirements.

Executor's Duties and Potential Liabilities in Western Australia

Executors in Western Australia have significant responsibilities including:

1. Identifying and securing all estate assets

2. Paying all legitimate debts and liabilities

3. Defending the Will if contested (family provision claims must be brought within 6 months of the Grant)

4. Maintaining proper accounts of the estate administration

5. Distributing assets in accordance with the Will

Executors can be personally liable if they:

• Distribute assets before paying all debts

• Fail to properly identify all beneficiaries

• Mismanage estate assets

• Distribute the estate incorrectly.

Tax Obligations for Deceased Estates

Executors must also attend to the deceased's tax affairs including:

1. Lodging the deceased's final tax return up to the date of death

2. Lodging any necessary estate tax returns for income earned during administration

3. Obtaining tax clearance before final distribution.

Digital Assets and Special Considerations in Modern Estate Planning

Modern estates often include digital assets such as online accounts, cryptocurrencies, and stored data. Executors should identify these assets and determine the appropriate process for accessing and transferring them.

For business interests and superannuation, special considerations apply. Superannuation may not automatically form part of the estate and may be distributed according to Binding Death Benefit Nominations rather than the Will. Expert advice from a Perth estate planning lawyer is essential for these complex assets.

Getting Help with Executor Duties in Western Australia

The role of an executor involves significant responsibilities and potential liabilities. Professional legal assistance ensures you fulfill your duties correctly while protecting yourself from personal liability.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice with probate applications, executor duties, or estate administration in Perth or Western Australia, please contact us on 0421 145 637 or email val@crystallawyers.com.au