Probate Explained

Mar 22, 2021

Are you an executor of a Will? Do you know your responsibilities as an executor? Do you know how to seek a grant of probate? 

Many people are required to apply for probate at some point in their lives after someone has passed away. It can be an overwhelming experience to suddenly learn of your responsibilities as an executor and the requirement to obtain probate before dealing with the deceased’s estate.

Probate can be a challenging and stressful task, especially when you are grieving the death of a loved one. The lawyers at Frichot Lawyers can ease the burden during this difficult time and assist you with your application for Probate.

Will                   the legal document outlining a person’s final wishes i.e. asset distribution, final resting place, etc.
Estate               the total assets owned individually by a person.
Testator           the Will maker.
Executor          the person(s) responsible for dealing with the Estate in accordance with the Testator’s
                          wishes as pre-described under the Will.
Beneficiary      person(s) named under the Will who receive any entitlements when the Estate is distributed.

What is Probate?

It is the responsibility of the Executor to apply for probate of the Testator’s Estate after the Testator has passed away. A probate application is filed with the Probate Registry of the Supreme Court of Western Australia (“the Court”). If the application is completed correctly and approved by the Court, the Court will issue a certificate known as the Grant of Probate. The Grant of Probate means that the deceased’s Will was proved and registered to be the last Will of the deceased person. The Grant of Probate gives the Executor the authority to deal with the deceased person’s assets (real property, cash, shares, etc) and distribute it in accordance with the Will.

Please click this link here for a non-exhaustive list of duties of Executors in WA

Responsibilities of an Executor

On top of applying for a Grant of probate, the executor(s) are also responsible for:
  1.  notifying the Beneficiaries of their entitlements under the Will;
  2.  gathering and distributing the assets in accordance with the Will;
  3.  ensuring that the Testator’s debts, taxes and funeral expenses are paid;
  4.  managing any assets that are held on trust for Beneficiaries pursuant to the Will until those trusts end and
  5. preparing the related accounts and tax returns for the Estate.

This can be overwhelming when you consider the paperwork for the deceased’s assets for the first time and realise it is your responsibility to deal with such assets. The lawyers at Frichot Lawyers can guide you through and assist you with the process.

A Case Example Explaining How Probate Works

Marg and John had been married for 27 years. John suffered a heart attack and passed away suddenly. He left his wife Marg and 3 adult children. Conveniently for Marg and John, they had updated their Wills only 2 years earlier as their family had expanded with grandchildren and they wanted to make specific provisions to support their children in the event they pass away. Marg was the Executor of John’s Estate and was overwhelmed about the process to organise his assets. John was the individual owner of a car, two bank accounts, and multiple commercial fishing licences. Marg soon came to realise that she could not sell the car, close the bank accounts or transfer the commercial fishing licences without a grant of probate giving her authority to deal with those assets.
 
Note: only assets owned individually by John form part of his Estate. Marg and John owned their family home jointly (as joint tenants), which means the home passes to Marg by survivorship. It does not form part of John’s Estate.

If you need assistance with a probate application, see one of our experienced lawyers in estate and succession planning.

 

Not sure if Probate is required? Not sure how to start your Probate application?

Frichot Lawyers now offers a simple online questionnaire to help you determine if Probate is required and to kick start your probate application. The link to the questionnaire can be found here:

Completing this questionnaire provides us with vital information for the probate application so when you meet us, everyone will be prepared.

Please note that you do not have to use the online system if you would prefer bringing all relevant documents with you when you meet us.
 
The experienced lawyers at Frichot Lawyers can:

  • Provide legal advice on your responsibilities as an Executor of an Estate;
  • Prepare and file your probate application with the Court; and
  • Help you transfer property and other assets to the Executors and beneficiaries in accordance with the Will.

Article by Jasmine Moran, Lawyer in Wills, Estate Planning and Injury Law
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