When a Western Australian resident with a valid Will passes away, their assets and debts will need to be taken care of. However, to gain access to this deceased Estate, the nominated Executor will usually need to obtain a Grant of Probate first. But what is Probate exactly?
Granted by the Supreme Court of Western Australia, this legal document gives the applicant authorisation to manage and distribute the deceased Estate amongst beneficiaries.
Given the gravity of Estate distribution following a loved one’s death, it’s important for Executors and next of kin to understand their duties and responsibilities regarding Probate. To help ensure this key step is as stress-free as possible, our below guide explains what Probate is, when it is required and how to apply.
What is Probate?
The term Probate refers to the process of validating a deceased person’s Will with the Supreme Court. If an application is successful, the court will issue a Grant of Probate, which is a legal document that permits a nominated Executor to manage Estate administration according to the Will’s instructions.
A Grant of Probate proves that the Will is in fact the last Will, and that the nominated Executor is alive, willing and capable of fulfilling their Estate administration duties.
Once issued, Probate allows the deceased’s assets to be transferred to the Executor so that they can access, distribute and sell them.
Without a Grant of Probate, the Executor cannot access or manage the Estate’s assets and debts. In fact, many asset holders in Western Australia, such as banks and superannuation funds, may refuse access without this proof of authority.
When is Probate required?
Probate is necessary when the deceased has left behind assets of a certain value and nature. For instance, a Grant of Probate is usually required if the deceased:
- Was the sole owner of a bank account with a balance exceeding approximately $50,000 (each financial institution imposes its own threshold)
- Owned shares valued at over $10,000
- Owned property as a ‘tenant in common’
- Had life insurance or superannuation entitlements to be paid to their Estate
Note that a Grant of Probate is not required under the following circumstances:
Assets owned as Joint Tenants
Probate is not required if the deceased owned property as “joint tenants” with another party. For instance, if spouses purchase real estate together as “joint tenants” before one partner passes away, ownership will pass to the surviving “joint tenant” without the need for Probate. The same is true for assets such as motor vehicles and bank accounts.
Probate is typically only necessary if the value of assets exceeds an amount specified by the financial institute in question. Therefore, the Executor usually does not need to apply for Probate when dealing with lower value assets, which can often be accessed using documents such as a copy of the death certificate and/or Will.
As mentioned above, different financial institutions enforce different minimum thresholds when it comes to releasing assets without a Grant of Probate. Therefore, it’s best to contact your specific financial institution for further information and figures.
If a person passes away without a valid Will in place (known as dying intestate) or their last Will cannot be found, it will not be possible to confirm a nominated Executor.
In this case, next of kin (or State Trustees if no family members are available) must apply for Letters of Administration instead of Probate. Issued by the Supreme Court, Letters of administration authorise the applicant to administer the Estate of someone who has died intestate.
Who can apply for a Grant of Probate?
In general, only the nominated Executor(s) can apply for a Grant of Probate. Note that this Executor must be at least 18 years old.
While it is not a legal requirement to hire a lawyer when applying for Probate, we strongly recommend seeking tailored legal advice and assistance with your application if you are unsure of your rights and responsibilities.
At Affinitas Legal, our Probate lawyers are highly experienced in all matters relating to Wills and Estates. For tailored and compassionate support with your application, please call us on 08 6244 7544 today.
Applying for Probate in WA
You are allowed to prepare and file an application for a Grant of Probate yourself or through a lawyer.
How long does the Probate process take in WA?
It tends to take approximately two months to obtain a Grant of Probate in Western Australia. However, this time frame can vary greatly depending on the complexity of your circumstances and volume of applications being processed.
Learn more about the factors influencing how long probate takes.
How much does the Probate application cost?
At Affinitas Legal, we are here to help you determine the costs of applying for Probate in your unique circumstances.
Get personalised support with applying for Probate in WA
If you feel your circumstances may require a Grant of Probate, it’s important to seek tailored legal support as soon as possible to ensure you understand your duties and obligations. In addition to offering tailored advice on legislation and fees, your lawyer can support you throughout the application process to help ensure a successful outcome.
At Affinitas Legal, our experienced Probate lawyers are here to guide you through the legal complexities of accessing and administering a deceased Estate. If you have been nominated as an Executor and think you may require a Grant of Probate, please get in touch with our lawyers for personalised support and fixed-fee applications.