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The process of obtaining Probate

Probate is a grant made by a Court that ‘proves’ the Will of a deceased person and vests title to estate assets in the executor/s. This is the official process that allows the executor to deal with the deceased’s estate.

As the legal personal representative of the estate, the executor must determine the assets and liabilities, liaise with debtors, creditors and beneficiaries, sell, transfer and distribute assets and finalise the estate in accordance with the Will.

The executor is often guided by a lawyer who provides professional advice to ensure protection from liability and to deal with any complications or claims made on the estate.

If the deceased died without a valid Will or the Will appointed an executor who is unable to fulfil that position, an interested person (usually a spouse, partner or child) may apply for letters of administration.

This article explains the process of obtaining a grant of probate where there is a valid Will, and what is involved in administering the estate.

Is a grant of probate necessary?

There is no statutory requirement to obtain probate and a grant may not be necessary for small estates. Property held jointly can be transferred to the name of the surviving owner/s by lodging the appropriate documents with the relevant authority.

Banks, financial institutions and share registries will generally release modest amounts without probate on production of the death certificate and proof of those entitled to the funds, and an indemnity releasing them from future claims. The relevant enquiries should be made with each entity.

A grant of probate is always required to transfer real estate that is not subject to a joint tenancy.

Unless the estate is small, simple and there is no risk of a claim being made against it, an executor will generally seek an application for a grant of probate.

Process

The following documents must be filed with the Court:
  • Motion for a Grant of Probate;
  • Affidavit with Statement of Assets and Liabilities;
  • Original Will and Death Certificate.

The affidavit sets out the date of birth, date and place of death of the testator, and his or her usual place of residence. It identifies the Will and death certificate and includes additional information regarding the testator’s marital status and the witnesses to the Will. The affidavit will also explain any irregularities such as different spellings of names or the death of a beneficiary named in the Will.

Sometimes additional documents will need to be prepared to explain unusual circumstances and an estate lawyer can advise in this respect.

The executor has an ongoing duty to disclose the assets and liabilities of the estate.

Once probate is granted, the executor may commence administration of the estate.

If assets are held outside of Western Australia, the grant of probate will need to be ‘resealed’ in the relevant jurisdiction to deal with those assets. This is a procedural matter in which a copy of the original grant, application and supporting documentation is filed with the relevant Court in the jurisdiction where those assets are held.

Protecting executors

Executors may be liable for losses sustained by beneficiaries through negligence or delay in administering an estate but must also ensure that all claims are considered before distributing estate assets.

The executor is not required to advertise an intention to apply for probate or to distribute an estate however in doing so may protect himself / herself from creditor’s claims. By publishing a notice in a major Western Australian publication, stating that the executor intends to distribute the estate after a specified date and calling for any claims to be notified by that date, the executor will be protected from liability for any claims that are not lodged.

Exemption from liability however does not apply to a family provision claim whereby eligible applicants generally have six months from the date of the grant of probate to apply. Accordingly, it is prudent for executors to wait for six months from the grant before distributing the estate.

A lawyer can explain the relevant timeframes and the most appropriate means of protecting you as executor, from liability.

Administering the estate

The Will should be examined to ensure the distribution is in accordance with its provisions. Understanding the correct interpretation of a Will’s terms can be confusing and it may be prudent to seek legal advice on the proper construction of the Will.

The executor and beneficiaries should receive appropriate legal or financial advice when transferring / receiving assets to ensure that stamp duty, capital gains, land tax and other taxes are considered.

Executors should also be mindful of their duty to protect and preserve estate assets and to ensure that appropriate insurance, where relevant, is in place.

Estates that include business interests will require additional attention – the business may need to be wound up, or the interests sold or transferred to a beneficiary.

Prior to distributing assets, the executor will need to be certain that:
  • the debts of the estate have been ascertained and paid in accordance with the statutory order for payment of debts;
  • funds are retained in the estate for contingent expenses such as taxes and other fees;
  • all beneficiaries have been identified and provision (if relevant) made for holding a minor beneficiary’s share in trust;
  • the estate is not distributed until all creditors are identified and the requisite timeframe has expired for an eligible person to make a family provision claim;
  • a proposed distribution statement has been prepared and approved, particularly where there are multiple beneficiaries;
  • beneficiaries who are receiving insurable assets have arranged insurance cover in their own names before cancelling existing policies.

Conclusion

Applying for probate and administering an estate is an important function, and for many executors and beneficiaries, the process can seem tedious and daunting.

However, these processes are in place to ensure that executors and beneficiaries are protected and that the testamentary wishes of a deceased person are properly carried out.

Your lawyer can also assist with your own estate planning to reduce the risk of a family provision claim against your estate. If you require any additional information or would like a confidential discussion, please call Ian Tait on 08 9422 8111 or email buslaw@taitlegal.com.au.