What is Probate?

Probate is the process in which a deceased person’s Will is proved and registered by the Supreme Court of Western Australia as being the last valid Will of the deceased person.

A Grant of Probate confirms that the executor named in the deceased person’s Will has the legal right to deal with deceased person’s estate. Banks and other financial institutions, Landgate, and share registries will often require a copy of the grant or to see the original version when dealing with the executor/administrator on the deceased’s person’s property.

The type of Grant required from the Supreme Court depends on the circumstances surrounding the execution of a Will by the deceased. For example, where no valid Will has been left, the process of applying for a Grant is via Letters of Administration, this process becomes more complex than a Grant of Probate, and we therefore recommend contacting Carter Dickens Lawyers to assist you through the process.

 

Common Forms of Grant:

• Probate – where a person has died leaving a Will that nominates a person as executor the Court may grant Probate to that person.
• Letters of Administration with the Will Annexed – where a person has died leaving a Will that does not name an executor or where the only executor named in the Will is unable or unwilling to apply for a grant of Probate, the Court may grant Letters of Administration with the Will Annexed to an appropriate person who will usually be a beneficiary of the deceased’s estate.
• Letters of Administration – where a person has died without leaving a valid will the Court may grant Letters of Administration to an appropriate person who will usually be a beneficiary of the deceased’s estate.

Being awarded one of these types of Grants is representation to the World that the Executor/Administrator of the Estate has the right to deal with the deceased’s Estate.

 

When Will Probate Not Be Required?

There are particular circumstances where an Executor may not require a Grant of Probate from the Supreme Court of Western Australia. These include:

• The deceased person did not own any assets in Western Australia (in which case Probate may be necessary in the Supreme Court of the relevant State);
• The deceased owned real estate at the date of death as a joint tenant with another person. In this case the title can be transferred to the surviving party without a grant of probate being required;
• The deceased’s bank account was jointly held with another person such as a spouse or partner. Such bank accounts will normally be transferred to the surviving party on production of a death certificate to the bank by the surviving party;
• The deceased’s only other assets were personal possessions and household effects;
• Shares owned by the deceased have a market value of less than $15,000;
• The bank accounts of the deceased have a balance of less than $10,000 (the precise balance before a bank requires a Grant varies between individual banks).

 

Documents Required in Simple Application for Grant of Probate

All basic applications for probate require the same five documents (which increases to six if there are any other testamentary instruments). Additional documents may then be required to satisfy the court as to other issues.

The five basic documents (the sixth being any other instrument of a testamentary nature) are:

1. motion for a grant of probate;
2. affidavit of applicant for probate;
3. rule 9B statement of assets and liabilities;
4. the original will and any codicil;
5. the original death certificate; and
6. any other instrument of a testamentary nature.

 

What is the Process to Obtain a Grant of Probate?

The executor named in the deceased person’s Will must make an application to the Supreme Court. An application can be made at any time after fourteen days from the death of the deceased person, but it is necessary for the deceased’s death certificate to be provided in this application.

Once an application for a Grant has been lodged in the Supreme Court, the typical period of processing is four to eight weeks, however, this is dependent on the court’s capacity to hear the matter.

If the court is satisfied with the application, they will issue a Grant of Probate. If the court is not satisfied with the application, it may issue a requisition notice. A requisition notice is simply a notice which advises that there is a defect with the application or that the court requires more information.

At the conclusion of this process, the deceased person’s original Will is retained by the Supreme Court, with a copy of the Will being attached to the Grant of Probate.

 

For More information please see the Supreme Court of Western Australia’s Wills & Probate Webpage or contact Carter Dickens Lawyers on (08) 9408 5212 for a free 15-minute phone consultation with one of our Lawyers.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your Legal Matter.