1. What is Probate?
A Grant of Probate of a Deceased’s Will is a Court document which grants the Executor or Executors named in the Will the power to deal with the Deceased’s estate.
A Grant of Letters of Administration is a Court document appointing a person to administer a Deceased’s estate where there is no valid Will or there was a Will which does not appoint any executors.
Most of the time a Grant of Probate of a Deceased’s Will is not contentious and fairly straightforward, if you are familiar with the Court requirements of an application but for those who are not familiar with the probate process, it can be frustrating and time consuming.
If the application is not in accordance with Court rules, then the Court will issue a requisition requiring the applicant to swear and file another affidavit. Given the initial application currently takes 4-8 weeks once it is lodged with the Court and another 4-8 weeks for each requisition issued by the Court, in addition to the document preparation time, incomplete applications for a Grant of Probate may be delayed many more months than necessary.
2. When A Grant of Probate is Necessary
A Grant of Probate is necessary where the Deceased left a valid Will and owned significant assets or real estate (as tenants in common not joint tenants). Significant assets means the total value of the assets is over $50,000.
If the Deceased did not own real estate in WA or significant assets worth over $50,000, then a Grant of Probate may not be necessary. In these circumstances, bank accounts, superannuation funds and life insurance may only require a death certificate if the value is low but some companies may still require a Grant of Probate.
3. When Probate has been Obtained in Another State or Country
If a Grant of Probate has already been made in another jurisdiction, you may need to obtain a re-seal of that Grant in Western Australia to deal with asset in Western Australia or obtain a fresh Grant of Probate. This will not impact our fees.
4. When is a Will Valid?
Laird Lawyers have prepared an article on wills and informal wills but generally, a will is formal document, prepared and signed in accordance with the Wills Act 1970, which disposes of their assets upon their death.
To be a valid Will:
(a) The person must have had capacity at the time of signing the Will (see our article on testamentary capacity);
(b) The Will must be in writing;
(b) The Will must be signed in the presence of 2 witnesses; and
(c) The Will must be signed by both witnesses in each others presence.
If there are marks on the will (such as staple holes or the impression of a paperclip) to suggest there may have been a codicil (an amendment to the Will) or there is question as to the Deceased’s capacity (such as dying of dementia), the Court will likely issue a requisition unless this is specifically addressed in the initial application. This will require a specifically tailored affidavit to address this issue.
5. What if the Will does not Comply with the Formal Requirements?
If a Deceased left an informal will, in that it was not executed in accordance with the Wills Act 1970 or the original was lost, there are still provisions to allow a Grant of Probate to be made.
This application will require further work as the affidavit will require additional information, such as the gross value of the estate, not just the value in WA, all circumstances around making the informal will to satisfy the Court the Deceased intended it to be their final will and all persons who may be affected by an informal will being accepted or denied and why they would be prejudiced. Laird Lawyers will also prepare the necessary consents of those prejudiced persons to the informal will being accepted.
Laird Lawyers will inform you as to the fee for an informal will at our first meeting as the work required is completely dependent on the circumstances of will execution and those who may be prejudiced.
6. When is Letters of Administration Necessary?
Letters of administration is required when one of the requirements for a Grant of Probate has not been satisfied. The most common is where a person died without a Will. In other circumstances there is a Will but no executor named, willing or able to obtain probate, such as where:
(a) there was no executor named;
(b) the named executors are under age or do not have capacity;
(c) the executors and substitutes have all died before the deceased; and
(d) none of the executors are within WA.
The Administration Act 1903 sets out who may be and Administrator of the estate, who is entitled to distributions from the estate and the portions of the estate to which people may be entitled, discussed below.
7. Who Makes the Application for Probate?
For a Grant of Probate, the applicant is the person named as executor. If multiple people are named as executor, all those persons can make the application or one or more may renounce their position as executor leaving one person or a named substitute executor. There is a specific form to renounce your position as executor which will need to be attached to the Affidavit.
If none of the first choice executors are willing or able to make the application, then the named substitute executors may make the application. Substitute executors will need to tailor their application to address why the first named executor is not applying.
An application can be lodged any time from 14 days after the deceased’s death.
8. Who makes the Application for Letters of Administration?
The case of Letters of Administration is more complicated as there is no named executor. Persons who may make an application for a Grant of Letter of Administration is generally one or more persons entitled to a distribution from the estate.
Section 14 of the Administration Act 1903 provides a table detailing the persons who are entitled to share in the estate in particular circumstances. Below is a simple diagram of those who are entitled to a share according to section 14. Alternatively, a copy of the section can be found here: http://classic.austlii.edu.au/au/legis/wa/consol_act/aa1903173/s14.html
9. What documents do you need?
(a) The Original Will – this needs to be signed by the executors and witness to the Affidavit and lodged to the Court for inspection;
(b) The Original Death Certificate
(c) Motion to the Court – This is the formal application to the Court seeking the Court make a Grant of Probate of the Deceased’s Will.
(d) An Affidavit in support of the Motion – There is a particular form this affidavit is required to be in and must contain particular statements
(e) An Asset and Liability Statement of the Deceased’s estate, to be attached to the Affidavit.
(f) Consents of those Renouncing – A named executor or a person entitled to be an Administrator for a Grant of Letters of Administration may shoose not to take their position, in which case their consent to the other executors or administrators applying will need to be attached to the Affidavit.
(g) An Affidavit of Due Execution of the Will – Where there are questions over the execution of the Will, one of the pages is not signed or there are marks suggesting later amendments or revocation, we may be required to prepare an Affidavit of Due Execution for a witness to the Will to execute. Our fixed fee will be $150 + GST for this document.
10. Requisitions
In some circumstances, the Court will, out of an abundance of caution, require further information, particularly where there are questions over the capacity of the Deceased or whether the Will is valid or later revoked.
Laird Lawyers are highly experienced in these applications and confident that we deal with all issues in the initial application to prevent the need for requisitions. For this reason, we do not charge for preparing supplementary affidavits to answer requisitions.
11. Challenging Wills or Entitlements
If there are questions on the validity of a Will or whether there is a later valid will, an executor may be required to prove the will in solemn form.
Alternatively, a person may consider that they have not been left sufficient amount for their advancement in life and believe they should have a greater share of the estate so they may make an application under the Family Provisions Act 1972.
We have prepared separate articles detailing when these applications may be made and what you need to know to commence or defend these claims.