Before you distribute assets and close the estate, take these important steps to protect yourself and make sure everything is done properly under Western Australian law.
Advertise for creditors
Under the Trustees Act 1962 (WA) you can advertise for creditors in a local newspaper and the WA Government Gazette. You do not have to. An executor who does not advertise forgoes a protection rather than breaching a duty. The notice must follow the format set out in the Act and allow at least one month for creditors to come forward.
Why it matters: If you advertise correctly, you are not personally liable for a claim by a creditor you had no notice of when you distributed. It does not protect you against a family provision claim, which the Act excludes. It does nothing about a beneficiary you missed either.
Pass the estate accounts
The Non-Contentious Probate Rules 1967 (WA) require you to file the estate’s accounts and plan of distribution at the Supreme Court within 12 months of the grant. In practice the accounts are passed when the Court orders it or when the executor wants the protection, rather than in every estate. See What is passing of accounts in Western Australia?
Why it matters: Once the accounts are passed, section 43(2) of the Administration Act protects you from further responsibility for those accounts after three years. That release does not hold if someone interested in the estate shows a wilful or fraudulent error in them.
Check for challenges to the Will
A challenge to the Will and a family provision claim are different things. A challenge is about whether the Will is valid. A family provision claim is brought by an eligible person who says they were left without adequate provision. It can be made whether or not there was a Will.
The period for a family provision claim to be brought is six months, usually running from the grant. The Court can extend it.
Tip: If you suspect a dispute or receive notice of a challenge, delay distribution and seek legal advice immediately.
What actually protects you if someone might claim
Advertising and passing the accounts do not answer a family provision claim. Two things do.
Distributing without notice. No action lies against you for having distributed part of the estate if the distribution was properly made and you had no notice of a claim or an intended claim at the time. You are under no duty to go looking for somebody who might apply.
A written consent. If a person who could apply is an adult with capacity and consents in writing to the distribution or states in writing that they do not intend to apply, a distribution made on the strength of that document is protected.
Why it matters: Waiting six months is prudent rather than protective, because the Court can extend the period. What changes your position is having no notice when you pay and holding a written consent from anyone who could bring a claim.
Complete income tax obligations
You need to lodge tax returns for the deceased up to the date of death and for any prior years or advise the ATO that returns are not needed, if applicable. If the estate earns income above the tax-free threshold, apply for a tax file number and lodge estate tax returns for each financial year until the estate is finalised.
Why it matters: If you distribute assets without paying tax, you could be personally liable. See What are the duties of an executor in Western Australia?
Handle superannuation and life insurance correctly
If superannuation or life insurance proceeds are paid into the estate, they generally shouldn’t be used to pay creditors. Seek legal advice before making any decisions about these funds.
Need help?
Finalising an estate can be complex and mistakes can leave you personally liable. We can guide you through every step and help wrap up the estate smoothly and by law.
Before you close the estate, take a moment to protect yourself. The law gives executors powerful protections, but only if you use them. Call the probate team on (08) 9220 4490 or book a consultation with us and we’ll confirm you’ve ticked all the boxes.
