A brief guide to Probate

Articles / A brief guide to Probate

What is Probate?

Good question!  Many people think that once a person dies, the Will they drew up magically appears in the hands of the executor.  The executor then calls everyone detailed in the Will together to hear what they were left and they then all leave with their entitlements.

Before any assets or possession are distributed, the Will has to go through Probate; the legal process necessary to carry out the instructions specified in the Will of the deceased.

Probate is made of three general steps:

  1. Registration of the last Will of the deceased to the Supreme Court.
  2. Authorization of a Grant of Probate.
  3. Distribution of assets and possessions.

Registration of the last Will

The executor of the Will is the person responsible for registering the last Will to the Supreme Court of their State (for Perth, it is the Supreme Court of Western Australia).  Even though the Will may have been drawn up legally, once the person has died, the Supreme Court must decide that the Will presented by the executor was the last Will and testament of the deceased.

Grant of Probate

Once the Supreme Court is assured of the validity of the Will, it will authorize a Grant of Probate; this is a legal document that assigns the executor with the legal powers to carry out the instructions set out in the Will.

A Grant of Probate is usually required if the deceased:

  • Had assets, such as bank accounts, shares or real estate, at the time of their death.
  • Was tenants in common with another party at the time of their death.

However, a Grant of Probate is not required if the deceased held bank accounts or owned real estate jointly with a spouse or civil partner.  In these situations, titles or monies would be transferred to the surviving party.  Another circumstance where a Grant of Probate is not required is when the deceased’s only other possessions were personal items.

Letters of Administration with the Will Annexed
But what happens if the deceased didn’t name an executor, or the executor is unable or unwilling to apply for a Grant of Probate?  If this situation arises, the Supreme Court has the power to grant Letters of Administration with the Will Annexed to an appropriate person; this tends to be someone who is named as a beneficiary within the Will.

Letters of Administration

But what do we do if the deceased didn’t make a Will?  Again, the Supreme Court is able to bestow Letters of Administration to an appropriate person who will tend to be a beneficiary of the estate of the deceased.

At any stage of this process, if you are unsure about what to expect or what to do next, consult with a lawyer who specialises in Wills and Probate and they will be about to guide you.

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