What is Probate?

We chatted with Associate Lawyer Kealeigh Barker who has demystified probate.

What is a probate? When a person dies, someone needs to become the legal representative to the deceased’s assets (which includes land, investments and cash in the bank) and pay off any debts of the deceased prior to any distribution.

If there is a will in place, it will name the executor or the substitute / backup executor.  If one of these persons applies to the Supreme Court of WA to become the legal representative, this process is called probate. Generally this is a straightforward process and applicants need to lodge their application at the Supreme Court Probate Registry.  Granting probate normally takes three to six weeks, but can be faster or slower depending on the information we receive from the executors and how busy the Supreme Court is at the time of lodgement.

If a will is not in place when someone dies, then a different application is required.  This application is called Letters of Administration.  The Administration Act 1903 (WA) outlines who is entitled to apply for Letters of Administration and essentially who is entitled to become the administrator of the estate.  The Administration Act 1903 (WA) also identifies who is entitled to a distribution from the estate (i.e. who is a beneficiary) and what proportions/percentage of the estate they may be entitled to.

In some cases, if the estate is small (less than $10,000.00), then probate may not be needed.  Probate is required if:

  • There is land involved, unless the land is held as joint tenants and the surviving tenant automatically inherits the property by way of survivorship. (However, in this situation an application is still required to be lodged with Landgate to make this transfer official);
  • The estate is not small. Different banks have different requirements when it comes to releasing funds of a deceased estate;
  • A superannuation fund requires it; and / or
  • The will is to be contested.

Due diligence must be carried out to ensure and satisfy the Court that there is no will in place. Examples such as advertising in The Brief (lawyers magazine), the Government Gazette, and local newspapers, as well as doing a search at the Public Trustee’s office at the Will Bank should be undertaken and proved to the Court if you are applying for a Grant of Letters of Administration.

If a valid will exists but the executor named has died and there is no substitute then a different application is required. This is called Letters of Administration CTA (or ‘With the Will Annexed’).  In this situation, it is slightly more complicated and it is recommended that a lawyer be engaged to assist in this process.

Our services are split into two parts. The application for the relevant grant and assistance with the distribution of the estate once the grant is issued. To apply for a grant we will prepare a motion and an affidavit which addresses the questions the Supreme Court will ask or need to be satisfied prior to issuing a grant. This affidavit is a sworn legal document and is lodged at the Court with the motion 

It’s also important to know what the assets and liabilities of the estate are at the date of death.  The applicant must also know what does and does not form part of the estate. For example, assets which may not form part of the estate are joint property as joint tenants, some or all business interests (in partnership or companies), and trust assets. This is why legal advice is recommended to be obtained prior to lodging any application.