Probate is a legal process that occurs after someone dies, involving the administration of their estate. In Western Australia, there are several common questions people often have about probate:
1. What is Probate?
Probate is the legal process of proving a will in court. It confirms the validity of the will and grants the executor the authority to administer the deceased’s estate.
2. When is Probate Required?
Probate is generally required if the deceased owned significant assets (like real estate or substantial bank accounts) solely in their name at the time of death. Probate is not required for any jointly owned assets.
3. Who Can Apply for Probate?
The executor named in the will is usually the person who applies for probate. If there’s no will, or if the executor is unable or unwilling to act, an application for “letters of administration” might be necessary.
4. How Do I Apply for Probate in Western Australia?
You need to submit a probate application to the Supreme Court of Western Australia. This involves filing several documents, including the original will, a death certificate, and an affidavit.
5. How Long Does It Take to Obtain Probate?
The process can take several weeks to a few months, depending on the complexity of the estate and whether there are any disputes or issues with the will.
6. What Happens if There Is No Will?
If the deceased did not leave a will, the estate will be distributed according to the rules of intestacy under the Administration Act 1903 (WA). A close relative will usually need to apply for letters of administration to manage the estate.
7. How Much Does It Cost to Obtain Probate?
Costs can include court fees, legal fees, and other expenses related to administering the estate. The exact cost depends on the size and complexity of the estate. The court filing fee is currently $408.00.
8. Can Probate Be Contested?
Yes, probate can be contested if someone believes the will is invalid or if there are concerns about how the estate is being managed. Common grounds include claims of undue influence, lack of capacity, or improper execution of the will.
9. What If the Executor Fails to Perform Their Duties?
If an executor is not performing their duties or is acting improperly, beneficiaries can apply to the court to have the executor removed or to seek other remedies.
10. Do I Need a Lawyer to Apply for Probate?
While it’s possible to apply for probate without a lawyer, legal advice is often recommended, especially for larger or more complicated estates. Lotus Legal has many years of experience in advising on all aspects of wills, probate and assisting executors to fulfil their responsibilities. If you have any questions or need assistance for a probate matter please contact us on (08) 9305 9529.