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WHO INHERITS WHEN
THERE IS NO WILL?

A 2017 survey by the WA Public Trustees found that half of West Australians over the age of 40 do not have a valid Will. The survey also found that only 19% of families with young children have a valid Will.

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FACT SHEETS

PROBATE

Probate is the legal process that a Will of a deceased goes through whereby the Supreme Court firstly confirms that the deceased is the Willmaker, reviews the Will for correctness of execution and that there is no immediate question of the deceased’s capacity at the time of making the Will, all to ensure that it is in order and complies with the law.

If the law is complied with the Court makes an Order in the form of a Grant of Probate which then empowers the executor to administer the estate of the deceased according to the terms of the Will.

Until a Grant of Probate is issued an executor has no power or authority to act.

To obtain a grant of Probate, the executor named in the will must make application to the Supreme Court. This application is made by lodging documentation and evidence with the Probate Registry of the Supreme Court.

An applicant must provide an address for service within Western Australia.

The process of Probate can be carried out by both an individual and a qualified person and here at Willcraft Estate Planning Pty Ltd our solicitors are able to offer our services.

As executor, how do I know if Probate is required?

If the answer to any of the next questions is “YES”, a grant of probate may be required before you can obtain control of assets, administer the estate according to the Will and the law and then wind up a deceased estate:

  • Did the deceased hold (at death) assets (e.g. bank accounts, shares, real estate) solely in their name?
  • Did the deceased hold (at death) real estate in the deceased’s own name or as tenants in common with another party?
  • Did the deceased have a superannuation benefit that was NOT the subject of a binding nomination?
  • Did the deceased have a share portfolio?
  • Did the deceased have an interest in a partnership?

If the deceased held real estate as joint tenants (e.g. with a spouse), the title can be transferred by way of survivorship. We can assist in this respect.

Jointly held bank accounts will normally be transferred to the surviving party on the production of a death certificate to the bank by the surviving party.

Some banks need persuading that this is all that is required. It is very rare for accounts to be held as tenants in common. We have assisted many clients in dealing with this problem.

For those seeking to obtain probate on their own, our service is available to help along the way with any complex situations that may arise.

When you contact us, we will discuss your requirements with you and then offer you a ‘Fixed Price’ for the work that is required so that you know where you stand.

As well as our FIXED PRICE promise we are also happy to provide some information that will help you if you are going it alone.

Help is only a phone call or an email away though!!

For further information contact our team on (08) 9368 1337

Information provided by Willcraft Estate Planning Pty Ltd, An Incorporated Legal Practice.