Probate is the process of proving a deceased person’s Will in the Supreme Court. Probate is required before the assets of a deceased person can be distributed. After Probate has been granted, a certificate will be issued stating that the Will is valid and registered, and the Executor has authority to administer the deceased estate.
If the deceased person has not left a Will, or the Will does not appoint an Executor, then the partner, family member, etc. can apply for Letters of Administration. This is a complex process and you should seek legal advice if you need to take this path. This is one of the many reasons we implore our clients to have a valid Will in place.
Let’s start by explaining the role of an Executor, and then we’ll get into the process of Probate.
The Executor has a very important part to play in ensuring a Will is executed as per the wishes of the deceased. The role is varied, with many responsibilities.
If the family haven’t or aren’t able to organise the funeral then the Executor takes on this role. They can also notify the beneficiaries if this hasn’t been done.
The rest of their role is to manage, administer, direct and dispose of the deceased’s assets as determined by the Will.
The Executor will need to apply for Probate (see below), ensure that they follow the law in administering the estate, pay off any debts and distribute the balance of the estate to the beneficiaries.
During the probate period, they will also be responsible for taking care of any business interests and ensure all cash, income, and assets are safeguarded. It may also be necessary to complete and lodge tax returns with the ATO.
We suggest the Executor have legal assistance in this process as it can be a complex area, and if doing this while still grieving a loved one then it can be a very emotional time too.
Probate is required if the deceased had any assets such as property, bank accounts, shares, etc. There are rare cases where Probate is not required, this is usually if all assets are in joint names, and the other named person is still living.
To apply for the process, you must complete the Probate Application Form and submit this to the Supreme Court of Western Australia. The application can begin 14 days after the deceased has passed away. You can apply online or by post.
The application will include:
A motion for Probate
An affidavit from you, the applicant
A statement of the deceased’s assets and liabilities
The original Will
The deceased’s death certificate – both the original and a copy
The filing fee
Other documentation may be required, we suggest seeking legal advice to ensure you submit everything that is necessary by the court.
Here’s a handy guide to help you gather everything you need to start the Probate Application Process.
The granting of Probate timing can vary, depending on the complexity of the Will and what is happening in the court. Some estimates state two to three weeks, others state the process takes eight weeks, we’ve had a client with a straightforward Will take six months. As there is no guarantee, we suggest setting no expectation around when Probate will be granted.
Once Probate has been granted, there is a range of responsibilities for the Executor.
The first step is to understand any debts that the deceased has, including income tax. Funeral expenses should be paid first.
The next step is to gather the assets of the deceased, this may involve the selling of goods such as cars, boats, property, and sale of shares. You’ll need to liaise with banks, insurance providers, superannuation companies, managed funds (and maybe more) to gather all the assets.
It’s important to note that superannuation does not automatically form part of the Estate unless the deceased has nominated their beneficiary as a ‘Legal Personal Representative’ (their Estate). If not, the funds will be dispersed outside of the Estate and as per any beneficiary nominations put in place.
A bank account will have to be opened to deposit the proceeds of these sales. Once debts have been paid, the remaining assets should be distributed as per the directions in the deceased’s Will. Each beneficiary will need a statement detailing what they have received, this is for tax purposes and ensuring the beneficiary does not incur Capital Gains Tax.
If there is property held within the Estate, you will be responsible for the sale or transfer of ownership. If the property is to be sold, you can begin the sale process however, the official transfer of land cannot be completed until after Probate is granted. Should the property be transferred to a beneficiary, you’ll need to liaise with Landgate. The process involves the title of the land being temporarily given to you (called Transferor, as Executor of the Will of the deceased) before the title is transferred to the beneficiary (Transferee).
You’ll need to liaise with the ATO to ensure that the deceased were up to date on all of their lifetime tax affairs, including the tax return for the financial year they died. There may be tax payable on the Estate.
The final step is to wind down the Estate. The Executor will be required to prepare a report detailing all the activities mentioned above. All accounts should be closed and you should save all the documents securely for at least seven years.
We suggest seeking legal advice to assist with Probate as this can be complex, and if the deceased was someone close to you, could also be an emotional time. Even with legal assistance, you will still be required to take part in the processes outlined above. If you’re considering your Estate Plan, please give us a call.
It is very important that you understand that the information above is general in nature and does not take into account your personal situation. You should consider whether the information is appropriate to your needs, and where appropriate, seek professional advice from a financial adviser. It is also worth noting that the Australian financial and taxation system is ever-changing, and the information above may no longer be relevant. Again, we suggest seeking professional advice from a financial adviser before proceeding.