Most executors can finish a straightforward estate themselves and plenty do. Deciding whether you need a probate lawyer in Western Australia is about what’s happening in the estate, not about what it’s worth.
When can you handle the estate yourself?
If the estate is straightforward and you have the time, you can probably carry out most of the work yourself. A straightforward estate might be a house and a bank account, with a credit card debt to clear. There is a valid Will appointing an executor, leaving everything to a surviving spouse or to the adult children in equal shares.
Even then you might engage a lawyer for one part of it, the grant application or the conveyancing on the house, then run the rest yourself. You also need time, because the administration takes months rather than weeks. See What is involved in applying for probate yourself?
When should you get advice?
The dividing line isn’t the size of the estate. It is whether you feel confident with the task ahead or whether anything in it can generate a liability in your name. Get advice if:
- the deceased was involved in a business, a company, a trust or a self managed superannuation fund;
- there is no Will;
- the Will is long, unclear or was not signed properly;
- the Will creates ongoing trusts, such as a testamentary trust or a life interest; or
- there is family conflict or the potential for it.
If you aren’t sure whether the estate needs a grant at all, start with Do you need a grant?
What does a probate lawyer actually do?
Application for a Grant. Drafting the affidavit and the supporting documents, dealing with anything unusual about the Will and answering any requisition the Registry raises.
Administration of the estate. This includes advising on your duties and powers and on the tax that has to be dealt with before you distribute, then doing the conveyancing if the house is sold or transferred to a beneficiary.
Tax and duty. A lawyer who administers estates regularly will look for savings that are not obvious from inside the estate. Structuring an agreement between beneficiaries in a particular way can change the transfer duty position. There are tax questions too that turn on when and how an asset moves. Both are worth asking about before anything is distributed rather than afterwards.
Finalising the estate. Preparing the estate accounts and the verifying affidavit, then dealing with any application for commission. See What is passing of accounts in Western Australia? and What an executor is entitled to be paid in WA.
We can help with as much or as little of this as you need.
What goes wrong without one?
Records. Record keeping is often the last thing on an executor’s mind, but it is the first thing a beneficiary asks about. Reconstructing the finances of an estate from incomplete records is slow and expensive. An executor who can’t justify a payment can be left out of pocket for money they really spent. See Organising estate paperwork after a death in WA.
Mistakes. These range from a gap in the record keeping to failing to keep the estate’s property insured. An executor can be held personally liable for a mistake, including an innocent one. See What are the duties of an executor in Western Australia?
What should you look for in a lawyer?
Probate and estate lawyers need to be kind, efficient and good listeners. Beyond that, look for someone who will:
- listen to you but stay objective about your matter;
- keep everyone focused on the big picture and avoid time wasting arguments; and
- take a practical approach and encourage cooperation during negotiations.
Who else should you engage?
Your funeral director is usually the first person you engage. Being an executor doesn’t mean doing everything yourself. A good manager knows what to delegate. After the funeral director, consider:
- an accountant, for specialist tax advice and complex returns;
- a real estate agent, if a property is being sold; and
- cleaners, gardeners and maintenance contractors, who can be invaluable.
Frequently asked questions
Can you apply for probate without a lawyer?
Yes. Nothing requires an executor in Western Australia to be legally represented. See What is involved in applying for probate yourself?
Can the estate pay your legal fees?
Yes, if they are reasonable. What counts as reasonable turns on the size and the complexity of the estate. It ordinarily covers the grant application and advice on your duties.
Do you need a lawyer if the deceased died without a Will?
Not necessarily, though an intestate estate is harder. There is no statutory order of priority in Western Australia for who may take administration. The entitlements are fixed by a statutory table and a surety guarantee may be required.
What if the estate is small?
A small estate can still be complex and a large one can be simple. Ask what the deceased actually owned rather than what its value adds up to.
Tell us what the estate looks like
We act for executors and administrators across Western Australia, on the grant application alone or on the whole administration. Contact us for expert advice on which of those you actually need. Call the probate team on (08) 9220 4490 or see our estate administration page.
Related: What are the duties of an executor in Western Australia?
This article is general information about the law in Western Australia and is not legal advice. Your circumstances may change the answer, so please get advice on your own situation.
