Probate and deceased estate FAQs

A Grant of Probate is a document issued by the Supreme Court of Western Australia confirming an executor’s authority to deal with the affairs of a deceased person. It gives the executor authority to collect the assets and administer the estate according to the terms of the Will.

A Grant of Letters of Administration is a document issued by the Court authorising a person to administer the estate of person who died intestate (without leaving a valid Will). The Grant authorises the person (known as the administrator) to administer the estate by collecting the assets, paying liabilities and distributing the estate in accordance with the laws of intestacy.

A family provision claim is an application to the Supreme Court by an eligible person who says the deceased did not make adequate provision for their proper maintenance, support, education or advancement in life. Rather than challenging the validity of the Will, it asks the Court to change what the estate gives that person. Our guide to family provision claims in Western Australia explains who can claim and how.

If the deceased owned land in their sole name or as a tenant in common, yes. Landgate will not register a transmission application until the executor or administrator has obtained probate or Letters of Administration from the Supreme Court. Property held as joint tenants passes to the surviving joint tenant and needs a survivorship application instead.

Estate administration is everything that happens after someone dies: collecting the assets, paying the debts and any tax, keeping accounts and distributing what is left to the beneficiaries.

Possibly. The Supreme Court of Western Australia can accept a document that doesn’t meet the usual signing and witnessing requirements if it’s satisfied the deceased intended it to be their Will. That takes evidence about how the document came to be made and it is decided case by case.

A reseal of a foreign grant is a process whereby the Supreme Court of Western Australia recognises the validity of a grant of Probate or Letters of Administration issued in another jurisdiction. Once resealed, the original grant will have the same effect and same operation in Western Australia as the original grant.

An independent administrator is a person who is appointed to administer a deceased estate and is independent of the beneficiaries or named executors. They are usually a lawyer or other suitably qualified professional. They can be appointed on a final or interim basis. An independent administrator can be useful where co-executors (or beneficiaries) are in dispute, distrust each other or are unable to cooperate effectively.

You can obtain a reseal from the Supreme Court of Western Australia of a grant of Probate or Letters of Administration from any of His Majesty’s Dominions.

An interim administrator is a person appointed to manage and safeguard the interests of a deceased estate until a final executor or administrator is determined through probate proceedings. Such administrators are usually empowered to deal with specific issues or assets which require immediate management. For example, insurance policies over real estate may need to be renewed; misappropriated assets may need to be recovered; or businesses may need to be wound up or sold. An interim administrator can also be appointed where it is alleged that the named executor has been engaged in wrongdoing and their conduct must be investigated.

A Grant of Probate is needed to administer a deceased estate when an asset holder will not release or transfer an asset without one. This includes land held in the deceased’s sole name or as a tenant in common, plus bank accounts holding more than about $100,000. There may be other reasons to obtain a grant. Our guide on whether you need a grant of probate helps you decide.

Letters of Administration is needed when someone dies without a valid Will and the estate holds assets that will not be released without a grant. The same triggers apply as for probate, being land held in the deceased’s sole name or as a tenant in common, plus bank accounts holding more than about $100,000. Where there is a Will but no executor able or willing to act, the grant is administration with the Will annexed instead. Our guide to Letters of Administration covers who can apply.

The grant is only the beginning of the estate administration. It gives the executor permission to deal with the estate. They still have to collect the assets, pay any debts and distribute what’s left to the beneficiaries.

A survivorship application removes a deceased joint tenant from the title. A Grant is not needed because the share never forms part of the estate.

Yes, if you can satisfy the Court the Will wasn’t destroyed by the Willmaker with the intention of revoking it. The application is to prove a copy. It needs evidence of the search you made and of the Willmaker still treating the Will as current.

Challenging a Will can mean one of two different applications. A family provision claim accepts the Will as valid, but asks the Court for a larger share of the estate. Only a spouse, de facto partner, former partner receiving maintenance, child, grandchild, stepchild or parent can bring one. Asking the Court to find the Will is not valid is a different type of application. This is open to anyone with an interest in the estate.

Our fees for a grant of probate are fixed for a straightforward application and are set out on the Grant of Probate page. The Court’s filing fee is charged separately and is not part of our fee. Where an application is not straightforward, we recommend you start with a consultation, after which we give you a quote before the work starts.

Yes, if you are one of the people the Family Provision Act 1972 (WA) allows to apply. Being left out entirely does not bar a claim, because the question is whether adequate provision was made for you rather than whether the Will seems fair. Our Family provision claims page explains how a claim runs.

A fresh Western Australian grant is applied for instead. Resealing is only available for a grant made by a court in one of His Majesty’s dominions, so a grant from the Republic of Ireland, the United States or most other countries needs a new application here.

Yes. Where the executor is acting improperly, the Court can remove them and appoint someone else. An independent administrator is the usual replacement where the beneficiaries cannot agree on who should act.

A transmission application transfers a deceased sole owner’s or tenant in common’s share to their executor or administrator. A Grant is required before the transmission can be registered. A transmission is required before the property can be sold or transferred to a beneficiary.

A question about the Willmaker’s capacity has to be dealt with before the Court will make a grant. What that takes depends on who is raising it and what evidence exists. That makes it a consultation question rather than a form question.

The cost varies with each estate because the work depends on what assets are in the estate and what issues arise during the administration. An estate with one bank account and no property is a different job from one with a house, shares and a business interest. We start with a fixed price consultation so we can get a good understanding of the estate and any issues that may arise. After the consultation we’ll give you a quote for administering the estate.

Letters of Administration is applied for by an adult who is entitled to share in the estate, which usually means the deceased’s spouse or their children. The applicant has to obtain the written consent of the other adult beneficiaries. If nobody in that group can apply, someone else may be entitled. Book a consultation for advice about your specific circumstances.

Most simple estates take six to twelve months from the grant to the final distribution. Much of that is waiting for banks, other entities and the ATO to complete their processing. It takes longer if there’s property to sell or a claim against the estate.

No, the executor or administrator is entered on the title first (known as a transmission application). The property is then transferred to whoever is entitled to it under the Will or the intestacy rules.

Our advertised fees are for straightforward applications. They don’t include the Supreme Court of Western Australia filing fee which is $418. If your application is not straightforward or if you require additional legal advice or assistance we will give you a quote for our services.

Each appointment is different depending on the nature of the estate, its issues and the tasks required. We charge our standard hourly rates for the work required and where the scope can be assessed accurately we can offer a fixed fee for a defined scope. When considering costs of an independent administrator, it is important to also recognise the value of hiring an independent administrator, including reduced disputes, expedited administration, and comprehensive accounting of the estate.

If you intend to challenge a Will, time is of the essence. You must apply within 6 months from the date of any grant of Probate or Letters of Administration (although the Court has a discretion to extend the deadline).

The application still proceeds, but a person under 18 can’t give the consent an adult beneficiary would give and can’t receive their share directly. The Court will want to see how that share is to be held until they turn 18.

In our experience the Supreme Court of Western Australia takes 4 to 6 weeks to review your application and issue a Grant.

Yes. Nothing requires an executor or administrator to use a lawyer and a straightforward estate can be handled without one. It is worth getting advice where the estate holds land, a business or a self managed super fund, where there is no Will or where anyone has raised a complaint. Our guide to whether you need a probate lawyer sets out when it is worth it.

Consistent with the duties imposed by law on all administrators/executors, Michael will communicate effectively and respond to all reasonable requests for information by appropriately interested parties (or their representatives) in the course of an administration.

It depends on whether the executor had already obtained the Grant. If they had, the estate may pass to their own executor or a fresh application may be needed. If they hadn’t, the substitute executor named in the Will applies instead.

The Court will first consider whether the testator has made an adequate provision for you in your particular circumstances. This includes consideration of:

• your financial position, level of education and age;
• the provision made for you in the Will (if any);
• the relationship the testator had with you and the other beneficiaries;
• the value and nature of the estate;
• any contribution you have made to the testator’s assets;
• the needs of other family members; and
• any conduct that you have engaged in that may disentitle you to a share of the estate.

If the Court finds that an adequate provision has not been made for you, it will effectively re-write the Will so that it reflects what a wise and just testator would have done.

Before real estate can be sold it must first be transferred to the name of the executor or administrator of the estate. There are three steps involved:

1. The executor or administrator must obtain a Grant of Probate or Letters of Administration from the Supreme Court of Western Australia. Landgate will not allow any property to be transferred without a Grant.
2. The property must be transferred to the estate, known as an Application by Personal Representative or a transmission application.
3. Finally, the property can be transferred to the beneficiary or, in the case of a sale, to the buyer.

Not until the debts and any tax have been paid. The usual advice is then to wait six months from the grant in case any family provision claim is brought. We recommend you obtain a written consent or release from everyone who could make a claim on the estate before distributing.

Please bring the documents and information listed on the relevant checklist.

• Probate checklist
• Letters of Administration checklist
• Reseal checklist

As a general rule, the answer is yes – executors and administrators can charge their reasonable legal costs to the estate. What is reasonable depends on the circumstances, but would generally include the costs of transmission applications, transfer to beneficiaries and settlement fees.

Every claim is different, so the cost depends on the size of the estate, what is in dispute and how many people are involved. We recommend starting with an appointment for initial advice and an assessment of your position.

There’s no fixed price, because what the Court needs is different in every one of these applications. We start with a consultation, then quote you for the application before any work on it starts. The Court’s filing fee is charged separately.

An applicant for a grant of Letters of Administration must provide a statement of the deceased’s assets and liabilities as at the date of their death. The statement must include all real estate in Western Australia and all movable property and debts, whether in Western Australia or elsewhere. Any property the deceased owned as a joint tenant with another person who survived them does not form part of their estate, rather it passes to the surviving joint tenant by survivorship. Download our checklist to help you collate the information you need.

Yes. The Court needs the original grant or a certified copy issued under the seal of the court that made it.

An applicant for a grant of Probate must provide a statement of the deceased’s assets and liabilities as at the date of their death. The statement must include all real estate in Western Australia and all movable property and debts, whether in Western Australia or elsewhere. Any property the deceased owned as a joint tenant with another person who survived them does not form part of their estate, rather it passes to the surviving joint tenant by survivorship. Download our checklist to help you collate the information you need.

A beneficiary of a challenged Will does not need to actively participate in the proceedings. However, if the Court upholds the challenge, the amount you will receive under the Will may be reduced. For this reason, you may want to present your financial and personal circumstances to the Court to persuade it not to reduce your entitlement.

No, it is optional. An executor who advertises and then distributes is not personally liable to a creditor whose claim they had no notice of, so it buys protection rather than discharging a duty. It gives no protection against a family provision claim. Our guide to how executors protect themselves from claims explains what it does and does not cover.

As an executor, you will need to be actively involved in the court proceedings. Your role is two-fold: to provide information regarding the value and nature of the estate and to defend the existing Will. In most cases, an executor will be entitled to have their legal costs paid from the estate, irrespective of the outcome of the proceedings.

Rule 9B of the Non-Contentious Probate Rules 1967 (WA) requires an applicant for a grant of Probate or Letters of Administration to provide a statement of the deceased’s assets and liabilities as at the date of their death. The statement must include all real estate in Western Australia and all movable property and debts, whether in Western Australia or elsewhere. Note that any property the deceased owned as a joint tenant with another person(s) who survived them does not form part of their estate, rather it passes to the surviving joint tenant by survivorship. Download our checklist to help you collate the information needed for the statement of assets and liabilities.

Yes, where the Will authorises it, where the beneficiaries agree or where the Court allows it. The Trustees Act 1962 (WA) lets the Court allow a commission that is just and reasonable, capped at five per cent of the gross value of the trust property. Five per cent is a ceiling on what the Court can allow rather than an entitlement. Our guide to what an executor is entitled to explains how commission is claimed.

As a general rule, the answer is yes – executors and administrators can charge their reasonable legal costs to the estate. What is reasonable depends on the circumstances, but would generally include the costs of making an application for Probate or Letters of Administration.

A beneficiary can apply to the Court to have an executor brought to account and, in a serious case, removed and replaced. The Court can order an executor to pass the estate’s accounts. Our page on challenges to the conduct of an executor explains the options.

If the executor renounces their right to obtain a Grant of Probate, the substitute executor named in the Will is entitled to make an application. If there is no substitute executor, one or more of the beneficiaries of the estate may make an application for Letters of Administration with the Will annexed.

Not always. Superannuation is held by the trustee of the fund rather than by the deceased, so it does not automatically form part of the estate and a binding death benefit nomination tells the trustee where to pay it. Where there is no valid nomination the fund decides. Our Claiming superannuation death benefits page explains how a trustee decision is disputed.

No. The debts are paid out of the estate and taking on the role does not make an executor liable for what the deceased owed. However an executor can become personally liable by distributing the estate before the debts are paid.

The reseal gives the original grant the same force in Western Australia as a grant made here, so it covers the assets held in this State. Assets in the country that made the original grant continue to be dealt with under that grant.

The administrator can then collect the assets, pay the debts and distribute what is left according to the intestacy rules. That work is the administration of the estate, and we can do all of it or just the parts you’d rather not do yourself.

The estate is divided under a table in the Administration Act 1903 (WA), which sets out a statutory formula for dividing the estate between surviving family members. The full order and the current figures are in our guide to the rules of intestacy in Western Australia.

If you are unable to find the original Will, you will need to produce evidence to satisfy the Court that the Willmaker did not destroy the Will with the intention to revoke it. Book a consultation to get started.