Probate

When a person dies leaving a Will, what should be done?

The Executor is responsible for the proper finalisation of the expenses of the estate as well as the distribution to the beneficiaries. The Will may include provisions regarding the deceased’s wishes as to funeral arrangements; donation of parts of the body to named teaching hospitals or universities; sale or transfer of a house; transfer of shares; shipment of items to beneficiaries living out of the state; etc.
The Executor must make a list of all the assets and decide whether it will be necessary to make an application for a Grant of Probate of the Will. Some estates can be finalised by just producing the Will and the Death Certificate when needed. Others require an application to the Supreme Court for a Grant of Probate.

This is an application made by the Executor to the Supreme Court of Western Australia. The Executor must satisfy the Supreme Court that the Will is valid. This means:

  • that there are no later Wills;
  • that when signing the Will the deceased was at least 18 years of age, was of sound mind and not subject to undue influence;
  • that the deceased did not marry or divorce after the Will was made; and
  • that the Will was signed in the manner required by law.

The application consists of: an affidavit, motion paper and the original Will and death certificate. In some cases the Court may also require other evidence such as affidavits from the witnesses to the Will. Once the Court is satisfied with the application it will issue a Grant of Probate of the Will. This document is the executor’s authority to administer the estate, according to the terms of the Will.

The Executor can deal with the assets as soon as Probate is granted. However, an Executor cannot safely distribute the assets until 6 months have elapsed from the granting of Probate because, in some cases, members of the family may contest the Will. The Supreme Court has the power to extend this period.

If you need assistance in making an application for Probate, please don’t hesitate to call us.

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