When a person passes away, leaving a will and assets in the estate, the executor named in the will must apply to the Supreme Court for probate. The grant of probate issued by the court gives the executor the authority to act on behalf of the deceased. When applying for a grant of probate, the executor should take the following steps:-
- Locate the will and keep it in a safe place. The physical appearance of the will should not be altered in any way. Keep the will in the same condition as you found it. The deceased may have made more than one will in his or her lifetime. The will found may not be the latest will. A later will usually supersedes the earlier will. Therefore, =enquiries with the deceased’s financial planner, solicitor or accountants to find out if a later will exists. A document which does not have the formality of a will but sets out the deceased’s intentions with respect to the distribution of the deceased’s assets may be recognised by the Court as an informal will. In this case, the assets will be distributed in accordance with the terms of the informal will.
- Obtain the original death certificate or a certified extract from the death registry or seek the assistance of the funeral director to obtain the death certificate.
- The executor should then make a list of the deceased’s assets and liabilities and their respective values. The purpose is to determine the estate for distribution to the beneficiaries. At the same time, this exercise is important as it may lead to the conclusion that it is not necessary to apply for a grant of probate. For example, real estate held by the deceased with another person as “joint tenants” will pass on to the surviving joint tenant without requiring probate to be issued. If the deceased left only a small deposit in a bank account, the bank may not require probate to be obtained before releasing the monies to the executor for distribution to the beneficiaries.
- If a grant of probate is required, the next step would be to determine the proper jurisdiction for the application to be made. For example, the Supreme Court of Western Australia has jurisdiction to grant probate if the deceased left assets located in the State of Western Australia. If the only asset left behind by the deceased is real estate located in another state or territory in Australia, then the application for a grant of probate should be lodged in that state or territory.
- If the will appoints more than one executor, confirm that all executors are prepared to act as executors. If any executor is not prepared to do so, then that executor must execute a renunciation of his or her right to obtain probate. This document will need to be filed with the Court along with the remaining executor’s application for probate. Seek legal advice if the appointed executors are not on good terms with each other or if an executor is located outside of Western Australia. An experienced lawyer will be able to assess the situation and outline the options available when applying for probate.
- The executor should check the cause of the death of the deceased. If there is any question as to the mental capacity of the deceased at the time the will was made, it would be prudent for the executor to obtain a medical report confirming that the deceased had mental capacity at the time when the will was executed.
- When applying for probate, the executor is also required to find out the deceased’s marital status at the time when the Will was executed and whether that status had changed at the time of death. This is because a Will is revoked by law if the deceased had married or divorced after executing the Will unless the Will was made in contemplation of such marriage or divorce.
- The executor should find out the full names and addresses of the witnesses to the last will as this information is required in the application for the grant of probate to be filed in Court.
- The executor can then proceed to make the application for a grant of Probate. This process can be done without the assistance of a lawyer, see the Supreme Court’s webpage: https://www.supremecourt.wa.gov.au/P/preparing_your_application.aspx However, if the will or estate is complex, you may require an experienced lawyer to assist with the preparation of the relevant documents and the distribution of the estate.
- After lodgement of the application with the Supreme Court, the executor must respond to any requisitions or questions which the court may have in relation to any aspect of the application. If the application is in order, the Supreme Court will issue the grant of probate. If you have made an application yourself and have received a requisition, seek advice from an experienced lawyer so that the issues can be addressed as efficiently as possible.
If you require assistance in applying for a grant of Probate or have any questions, contact us at Robertson Hayles Lawyers on (08) 9325 1700 or by email at email@example.com.
The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.