Probate and letters of administration

Contributed by Maree van der Kwast and current to 1 September 2005

WHEN THERE IS A WILL

When a person dies leaving a will there are certain procedures which have to be gone through before the wishes of the will maker can be carried out. Except in a few small estates there has to be a Grant of Probate. A Grant of Probate is the decision by the Probate Division of the Supreme Court of WA that the will was intended by the will maker to be his or her last will and the appointment of the person to act in the place of the deceased with regard to the deceased’s affairs.

If the estate is small a grant of probate may not be necessary.

Where there is no dispute as to whether the will is the last will of the deceased there is no court case. Probate will usually be granted when certain forms are filed in the Probate Division Registry (see contact details at the end of this chapter). This is called a Grant of Probate in Common Form. But if there is some dispute, such as whether or not the will is in fact the last will of the deceased, a court case may result. When a dispute about a will has been decided by a court it will make a Grant of Probate in Solemn Form.

For a Grant of Probate to be made there must be a will of the deceased in existence. However, on some occasions the members of the family do not know whether the deceased left a will or if they did, where it can be found. If the will is not with the deceased’s personal papers, checks could be made with the deceased’s bank, insurance company or lawyer. A deceased may have left a will with the Public Trustee or private trustee company. If no will is found the deceased died intestate.

Procedure for obtaining a grant of probate

Most Grants of Probate are in Common Form. Obtaining the grant involves the preparation and lodging of several documents at the Probate Division of the Supreme Court (see Contact Points at the end of Chapter). These documents are:

• draft grant;
• original will;
• certified copy of death certificate;
• motion paper;
• affidavit of Executor; and
• statement of assets and liabilities.

The Registrar may require the filing of further forms in some cases, such as where there is doubt as to the proper signing of the will. A Grant of Probate is usually made within a few weeks of lodging the documents although no grant can be made earlier than 30 days after the death of the deceased.

The Court charges filing fees for a grant of Probate or Letters of Administration. The fees depend on the value of the estate and are currently as follows:

Estate value less than $10,000 $131
Estate value $10,000 to $100,000 $262
Estate value greater than $100,000 $524

If a solicitor is acting for the executor or administrator then the solicitor will charge additional fees for the work done.

WHEN THERE IS NOT A WILL

The basic principal is that when a person dies without a will the deceased’s next- of-kin should receive the estate. If there is no next–of-kin the estate may go to the State. The order in which the next-of-kin benefit is set out in Section 14(1) of the Administration Act 1903. The rules are complicated and change, depending on:

• the value of the estate; and
• the type and number of family members the deceased had.

If the deceased leaves a will which only distributes part of the deceased’s estate then the remainder of the estate not distributed by the will similarly passes to the next-of-kin. In these circumstances the court will appoint an administrator to carry out the order of the court which is known as the Letters of Administration. The administrator may distribute the assets as provided by the Act.

Procedure for obtaining Letters of Administration

The procedure is similar to that for obtaining a Grant of Probate. The following documents must be filed at the Probate Registry:

• draft grant;
• consents of next-of-kin;
• certified copy of death certificate;
• motion paper;
• affidavit of Administrator;
• statement of Assets and Liabilities; and
• original will (if applicable).

The Court may require the applicant for Letters of Administration in conjunction either with two sureties (or guarantors), or with an approved insurance company as guarantor, to lodge a bond (or guarantee) that the administrator will carry out his or her functions properly. If the applicant chooses individual sureties, each surety must have assets in that person’s own name to the value of the estate. The requirement can be, and usually is, waived by the Court if all of the next-of-kin agree. A grant of Letters of Administration is normally made within the same time as for a grant of Probate.

WHEN IS PROBATE OR LETTERS OF ADMINISTRATION REQUIRED?

It is not necessary to obtain a Grant of Probate or Letters of Administration in every case. Generally, when an estate is very small and does not contain any real estate or any bank accounts greater than $6,000, there is no need to obtain a grant.

An individual will generally apply for a Grant of Probate or Letters of Administration because it may not be possible otherwise to collect and distribute the assets of the estate for the benefit of the beneficiaries. For example, the deceased may have held land which cannot be transferred or sold without a Grant of Probate or Letters of Administration. Another practical result is the protection it gives to the executor and to the beneficiaries or next-of-kin. The executor or administrator obtains a clearly defined authority to administer the estate. The beneficiaries or the next-of-kin can be assured that they are the only people who will receive property of the deceased person. If another person disputes their claim by, say, the production of another will, the only way that person can receive any of the estate is to apply to the court to revoke (that is, cancel) the Grant of Probate or Letters of Administration.

SMALL ESTATES

Generally

When a person dies leaving only a small amount of property it may not be necessary to obtain a Grant of Probate or Letters of Administration. Set out below are examples of situations where a Grant may or may not be required. If the nature of the assets, although small, requires a Grant to be taken out then the same procedures referred to above must be followed. It will probably be necessary to employ a lawyer or other agent to do this work. If, however, no Grant is required then the work may be done without a lawyer.

Procedure where no Grant required

It is not possible here to say with certainty when Probate or Letters of Administration are needed. The requirements vary from one institution to another and with the value of individual assets.

BANKS

A deposit in a bank and building society of up to $6,000 may possibly be released without a Grant of Probate or Letters of Administration. Banks may be prepared to release to the executor named in the will the funds of deceased depositors upon the production of:

• the will;
• a certified copy of death certificate;
• sometimes, consent and indemnity forms from the spouse and next-of-kin of the deceased consenting to payment of the money to the executor; and/or
• sometimes, proof of payment of funeral expenses.

In the case of joint accounts with banks or building societies, the institution will normally pay the proceeds of an account to the surviving depositor upon production of evidence of the death of the other depositor.

LIFE INSURANCE COMPANIES

Many deceased persons have life insurance policies which mature upon their death. Generally, life insurance companies will make payment under these policies without a grant of Probate or Letters of Administration when the sum does not exceed $50,000 (s.211(1)(b) Life Insurance Act 1995 (Cth)) and upon the production of:

• the will or a certified copy of it;
• a certified copy of the death certificate; and
• an indemnity signed by the executor, spouse or other member of the family.

REAL PROPERTY

Where the deceased owns a house, property or land or an interest in land (e.g. a mortgage or lease) in his or her sole name it is necessary to obtain a Grant of Probate or Letters of Administration. This also applies where the deceased owns any interest in land as a tenant-in-common.

However, no Grant is required in order to deal with any interest in a house or land held by the deceased as a joint tenant.

MOTOR VEHICLES

A Grant of Probate or Letters of Administration are not needed for the transfer of a motor vehicle if the car is the major asset in the estate. There is no special requirement for the transfer of a motor vehicle to a Beneficiary, except changing the name of the owner for registration purposes.

Stamp duty and transfer fees are payable when transferring a motor vehicle registration to a Beneficiary. It is necessary to produce the will, the death certificate and complete a disposal notice signed by the Executor/Administrator and Beneficiary.

PERSONAL GOODS AND CHATTELS

Generally there is no special procedure required for the transfer of these items.

OBTAINING A DEATH CERTIFICATE

In many of the procedures listed above a certified copy of the death certificate is required to prove death. It may be obtained from:
Registrar of Births Deaths and Marriages
Level 10, 141 St George’s Tce
PO Box 7720 Cloisters Square
Perth WA 6850

The fee payable for a certified copy of a death certificate is $40.00. A certificate may be requested by mail or application can be made on a form downloaded from the Registrar’s website (www.justice.wa.gov.au) and faxed to the Registrar on 9264 1599. Sufficient details should be sent about the deceased such as his or her full name, address, date of death, age and place of death.

JOINT TENANCY AND THE DEATH OF JOINT TENANTS

A surviving joint tenant automatically obtains the whole interest in the property when the other joint tenant dies.

Despite this automatic operation, in the case of land, the death must be noted on the Certificate of Title to the property before any further dealing with the property can take place. The surviving joint tenant should lodge a survivorship application form and supporting statutory declaration at the Department of Land Information on the form prescribed, which can be purchased from any legal stationery store. A certified copy of the death certificate should be attached to the Statutory Declaration form. The duplicate Certificate of Title must be produced and the fee payable is $79.

Alternatively, a copy of the application form and statutory declaration can be downloaded from the Department’s website (www.dli.wa.gov.au), together with a Guide on filling out the form. If assistance is required, a lawyer can prepare the application. The address of the Department of Land Information is provided at the end of this chapter.