What is Probate?
Probate is the process of proving and registering in the Supreme Court of Western Australia, the last Will of a deceased person.
When a person dies, somebody has to deal with their estate. It is usually the executor of their Will who administers the estate and handles the disposal of their assets and debts. In order to get authority to do this, they usually need to obtain a legal document called a ‘Grant of Probate’.
To protect the interests of those who hold the deceased’s assets (for example banks) the executor may be asked to prove they are authorised to administer the Will before the assets can be released. The Grant of Probate is the proof required.
To obtain a Grant of Probate, the executor named in the Will must apply to the Probate Office of the Supreme Court. If their application is approved, the executor is given a Grant of Probate to confirm the author of the Will has died, the Will is authentic and the executor is who they say they are.
An executor can be an individual or a trustee company like the Public Trustee. The role of an executor in the administration of an estate carries with it serious responsibilities and the person or organisation appointed is responsible for ensuring that all assets are accounted for, all debts are paid, and that the beneficiaries receive their inheritance in accordance with the terms of the will.
Once a Grant of Probate has been given, management of the deceased’s assets can safely be transferred to the executor. In Western Australia, all Grants of Probate are stored, along with the corresponding Will, at the Supreme Court of Western Australia and these are public documents.
What is Letters of Administration?
If a deceased person does not have a Will, validation of their estate and benefactors is not done with a Grant of Probate, but with a similar document known as ‘Letters of Administration’. In these circumstances, the Probate Registry of the Supreme Court refers to the Administration Act 1903 (WA) to assess applications.
Generally, someone entitled to benefit from the deceased person’s estate applies for letters of administration. This is usually the deceased’s spouse or child; or if they didn’t have a spouse or child, their parent or sibling. If none of these people exist, another extended family member can apply.
Sometimes there is more than one person who is entitled to apply for letters of administration or letters of administration with will annexed. In this case, all of those people who are entitled to make the application, but aren’t applying, must each provide letters of consent.
If there is a beneficiary who is a minor (under 18), then the applicant must get two people to guarantee that they (the sureties or guarantors) will make good any financial loss that minor beneficiary might suffer from the applicant’s actions. This is to make sure the minor beneficiary’s interest is protected.
Generally, the documents to file with your letters of administration application are:
- a motion for letters of administration;
- an affidavit (a written and sworn statement that can be used as evidence in court) from you, the applicant, with a statement of the deceased’s assets and liabilities (what they owned and owed);
- letters of consent (if any) from all other people entitled to benefit from the estate who aren’t applying
- any sureties or guarantees (if required);
- the deceased’s death certificate – the original and a copy; and
- the Supreme Court filing fee.
Letters of administration are different from letters of administration with a will annexed. Letters of administration with a will annexed are only made if there is no executor to make an application. That means if the will maker didn’t appoint an executor or the only executor named in the will is deceased, unable, or unwilling to act.
Having further questions about making your Will? Need legal advice for your Will?
Feel free to talk to us now at ☎️(08) 6161 0243 or ? info@ah2legal.com.au for any inquiries.
