What is a grant of probate?
Probate is a court order granted by the Supreme Court of Western Australia. It confirms the will is valid, and the executor appointed under the will has authorisation to administer and distribute the estate to the beneficiaries.
Who applies for probate?
Usually the executor or a lawyer acting on behalf of the executor applies for probate. To apply for probate, the executor named in the will must be 18 years or age or older and of sound mind.
Where do I apply for probate?
You apply for probate to the Supreme Court of Western Australia, but only if some or all of the deceased’s assets are in Western Australia. If the deceased left no assets in Western Australia the court will not issue a grant of probate.
How do I know if I must apply for probate?
Depending on the type, size and value of the assets in Western Australia it may not be necessary to obtain a grant of probate. There is no legal requirement for the executor to obtain probate in every case.
If the deceased didn't own real property and only had small amounts of money to their name, you may not need to apply for probate.
Different asset holders have different criteria and requirements for releasing assets. Each bank has its own internal policy regarding probate. Some banks will release the funds to the executor if the balance is less than $100,000 like Westpac. Other banks have lower limits.
Therefore, if there is no real estate you should approach the asset holders such as banks, superannuation funds, insurers and share registries to determine if they will transfer the assets without a grant of probate. It may be possible to have the asset holder transfer the assets by sighting the original death certificate and will.
If the deceased person is an account holder of a joint savings or transaction account, the funds in the account will not form part of the deceased estate. The deceased person’s name will be removed from the account once the bank receives the death certificate. For joint accounts probate is not required. The same applies for property held as joint tenants.
If the deceased held real property in their sole name or as tenants in common with others, had refundable accommodation deposit, shares or nominated their legal personal representative as the beneficiary of their superannuation death benefits the executor must apply for probate. This list in not exhaustive and the executor should seek legal advice if unsure.
Why you need a probate lawyer?
Applying for probate may appear easy but often self-represented executors receive requisition letters from the Supreme Court about deficiencies with their applications.
The common issues are:
estate assets and liabilities have not been described in the application correctly
the application is missing important information
the information on the application does not match what is in the will and the death certificate
there is an issue with the execution of the will (eg unsigned or undated will) which has not been addressed in the application.
Such issues will delay the process and the issue of the grant of probate. These faults with the application also consume the court's valuable time unnecessarily.
A probate lawyer can advise you about:
how to locate the original will or the current addresses of the witnesses
preparing the probate application, so the grant will issue without delays
your obligations under the will
the risks of your role as executor and how to eliminate those
issues with the will and how to apply for probate of an informal will (one not prepared as per legal requirements)
your role in contested proceedings usually when there is a family conflict
complex applications involving a business, company, trust or a self-managed superannuation fund
how to administer testamentary trusts established under the will
how to distribute the assets to the beneficiaries.
Tips for the initial consultation with your probate lawyer
To make the most out of your consultation appointment make sure that you are well prepared and bring the following information to the appointment:
your ID – driver's licence and passport
original death certificate
copies of all recent financial statements for the deceased, including bank accounts, life insurance policies, and any retirement or investment accounts
original or copies of title deeds
names and current addresses of the witnesses of the will (the lawyer can help you find those)
names, dates of birth and addresses of the beneficiaries.
Questions for your probate lawyer:
How can you help me protect myself in the role of executor?
What is the cost for preparing the application for probate and for the administration of the estate after the probate issues?
How long does it take for you to prepare the probate application?
How long does it take for the court to issue the grant of probate?
What should I do so I can transfer/sell real property?
When can I advertise to sell estate property?
The legal fees for the probate application and the administration of the estate will depend on the size and complexity of the estate.
You may prefer to engage a lawyer who offers fixed fees so there will be no surprises later.
You may also prefer to look for a lawyer who provides unbundled probate services, so you can save on legal fees.
At Crystal Lawyers we have the necessary expertise to give you the advice you need and handle the matter in the most efficient and cost-effective way.