Understanding Probate: What Really Happens When Someone Passes Away
Losing a loved one is never easy. Beyond the emotional toll, families face practical and often confusing challenges, one of which is the legal process known as probate. It’s a word that might sound daunting, but understanding probate can turn an unpredictable experience into something manageable.
What is Probate?
Probate is the formal legal procedure by which a deceased person’s will is validated and the executor is authorised to administer the estate. In Western Australia, this process is conducted under the supervision of the Supreme Court of Western Australia. Where a valid will exists, the executor applies for a Grant of Probate; in the absence of a will, an interested person must apply for Letters of Administration, allowing them to administer the estate in accordance with the relevant law.
These authorisations confer the necessary legal authority to collect assets, discharge liabilities, and distribute the estate either pursuant to the will or in accordance with the Administration Act 1903 (WA).
The Importance of Probate
Probate serves a critical purpose in estate administration. Financial institutions, superannuation providers, and land registries typically require probate before releasing assets. Without such legal authority, executors lack the standing to manage accounts or property, notwithstanding family consensus. Thus, probate ensures that the estate is dealt with in a legally recognised manner, safeguarding beneficiaries and third parties alike against unauthorised or erroneous transactions.
Dispelling Common Misconceptions
It is often assumed that probate is an excessively time-consuming process; however, straightforward applications in Western Australia frequently receive clearance within six to eight weeks once the requisite documentation is properly completed.
Another prevalent misconception is that probate is only relevant to substantial estates. In fact, probate is often necessary for estates of modest value, such as those involving bank accounts or real property. Lastly, while having a will substantially streamlines estate administration, probate generally remains a prerequisite to establishing its validity.
How Legal Counsel Enhances the Probate Process
The probate application is a technical document, and even minor errors, such as inaccuracies involving witnesses to the will, may result in delays. Legal professionals experienced in estate administration assist in ensuring that all procedural and substantive requirements are satisfied. They coordinate communication between executors, financial institutions, and beneficiaries and offer strategic advice in cases of dispute, including claims under the Family Provision Act 1972 (WA).
Engaging expert legal advice at an early stage mitigates the risk of complications and alleviates distress during what is invariably a challenging time.
Concluding Observations
While probate may be perceived as a bureaucratic formality, it fundamentally embodies principles of certainty and equity. It guarantees that the deceased’s final wishes are honoured, and the rightful entitlements of beneficiaries upheld. If you find yourself navigating probate, or contemplating estate planning, consultation with an experienced estate lawyer at Lynn and Brown will provide guidance and reassurance.
Contact our team today to arrange a consultation and secure the peace of mind that comes with professional guidance.
About the Author: Ida obtained her Bachelor of Laws at Murdoch University in 2020, after graduating with a Bachelor of Criminology. Ida was admitted as a lawyer in 2022 and has worked in the Wills and Estates area since starting her career. She is passionate about providing a friendly service, helpful solutions, and navigating clients through challenging times.
Outside of work, Ida loves taking her dogs on adventures, brunching on the weekends and spending quality time with her family and friends over delicious food and wine.
