Probate is a certificate granted by the Probate Office of the Supreme Court in each Australian jurisdiction. The Probate Registry issues a Grant of Probate certificate to confirm that a will is valid and to authorise the executor to distribute the estate according to the terms of that will. In Western Australia, Probate is governed by the Administration Act 1903 (WA). This article outlines key aspects of the process of probate in Western Australia.
How to Apply for Probate in Western Australia
A Grant of Probate in Western Australia is sought through an application to the state’s Supreme Court. An application can be filed fourteen days after the death of the testator by a solicitor, executor of the estate, or another eligible person. The application can be filed online, or in person at the Probate Office. The current filing fee to apply for probate in Western Australia can be found here.
Probate in Western Australia is granted in “common form” when there is no dispute as to the validity or fairness of the provisions within the will. The Probate Office takes approximately three weeks from receiving the application to issue a common form Grant of Probate. Unlike in other Australian jurisdictions, Western Australia does not require legal notices to be published to notify interested parties that a Grant of Probate is being sought.
In cases where the will is legally challenged or contested, the Probate Office may grant probate in “solemn form” following notice to all interested parties, and hearing the testimony of witnesses. This process, naturally, can take considerably longer than a common form grant.
Probate in Western Australia: The Role of Executor
The executor’s role during probate is to manage, administer, direct and dispose of property under the will. First, the executor may assist in arranging the funeral and burial of the deceased. They will then compile an inventory and valuation of the estate to be submitted to the Probate Office. Compiling this inventory and valuation can be quite a time-consuming and difficult task in itself, not least because the valuation involves uncovering both assets and liabilities.
The executor will then apply to the Probate Registry for a Grant of Probate. Once probate has been granted, the executor will lodge final tax returns, pay outstanding debts of the estate, and distribute the residue of the assets according to the terms of the will.
An executor often also has the heavy burden of safeguarding assets during the probate period. This can include protecting the value of assets (such as obtaining insurance, arranging for necessary maintenance, or storing valuables), or even operating a business to prevent a devaluation of the asset during the probate period.
The executor will also perform the demanding role of communicating with all beneficiaries at a time when they are likely to be grieving. The executor may bear the brunt of disappointment from family members who feel that they should have inherited a greater share of a deceased estate. If the will is contested or challenged, the executor also has the job of defending the estate in court.
Probate in Western Australia: Priority of Payment
Following the granting of probate, the first expenses to be paid out of the deceased estate are funeral, testamentary and administration expenses. These expenses have priority over all other payments. Once these expenses have been paid, priority is given to secured debts and debts to the government, including outstanding taxation debts.
If the estate includes a property with a mortgage, then the executor will pay out the mortgage unless the will states that the property should be transferred with the debt still attached. When all debts have been discharged, the executor will then distribute the remaining assets amongst the beneficiaries according to the testator’s intentions. If it is not possible to discharge all debts from the estate, a creditor can bankrupt the estate.
Probate in Western Australia: Intestate Estates
When a person dies without writing a will, they are considered to be intestate. An intestate estate still needs to be administered, which means the Supreme Court must make a Grant of Probate to give someone authority to deal with the estate. This is done through a Grant of Letters of Administration, which authorises an administrator to distribute the estate according to legislation, including directions for the payment of debts and the distribution of assets to beneficiaries. In Western Australia, the person appointed as administrator of an intestate estate is often the deceased’s spouse or their child.
If a will exists, but it does not name an executor, or the named executor is incapable or disinclined to apply for probate, the court may make a special grant of Letters of Administration with the Will Annexed. This appoints an administrator who will act much like an executor, and carry out the wishes expressed in the will.