Deceased estate and probate law

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Estate, Probate Law

probate wills estateElliott and Co provide specialist legal advice and representation in relation to all aspects of estate law in Western Australia.

That’s all we do.

Whether you need help in relation to Wills, Probate, Family Provision, Inheritance or Succession Law we are happy to help.

Most of our work relates to responsibilities or disputes that arise after a person has died.

Typically our clients are executors, administrators, legal personal representatives or their solicitors and beneficiaries of an estate. They may also be one or more family members of a person whom has lost capacity. Our clients are usually individuals whom live in Western Australia or law firms throughout Australia although we also act for those living outside Australia (with foreign domicile).

We are happy to:

  1. simply talk through issues with you (for example, to inform you of your rights and responsibilities, to help you understand whether your expectations are reasonable, to attempt to avoid or manage a dispute or to assess whether you have a valid claim for amount for an amount that is worthwhile pursuing).
  2. act on your behalf by attempting to negotiate solutions for your problems or by commencing or defending legal proceedings (including by representing you at a court ordered mediation and at trial).

Common Deceased Estate, Probate Issues

1. Applications for Probate, Letters of Administration or to Reseal a Grant

When a person dies leaving property in Western Australia it is often necessary or wise to obtain a grant of probate (if there is a will and you are the executor named in it) or a grant of letters of administration to deal with that property.

Applications usually require a motion, an affidavit in support with an asset and liability statement for the deceased as at date of death, citing the original death certificate, a filing fee and when there is a will, the original will signed by the applicant and a witness.

Depending on the circumstances, applications may also require other measures such as surety guarantees, the consents of the beneficiaries, a medical reports and evidence from witnesses to the will etc.

It is not uncommon for the court to seek further information after an application has been filed. The relevant Registrar usually do this by issuing a Requisition.

The person/s whom are successful with this type of application are called an Executor, an Administrator or a Legal Personal Representative of an estate.

The grant that is obtained by application to a Registrar of the Supreme Court of WA simply on the papers is called a grant in common form.

The grant that is obtained after the matter has been considered by a Judge of the Supreme Court WA is usually called a grant in common form.

A grant obtained outside Western Australia may be resealed in Western Australia to deal with property here, although in some cases a new grant will be required in WA.

It is possible for a person named as an executor in a will to renounce that appointment. Issues can then arise as to whom should act in their place. We can advise on how the court attempts to resolve that issue and whom is/are most likely to be appointed in that role in the absence of agreement.

Additional issues may arise where more than one executor is named in a will (including a substitute executor).

2. Inheritance, Family Provision Act claims

inheritance family estateThe Family Provision Act (W.A.) 1972 enables certain classes of people (e.g. in certain circumstances a spouse or de facto spouse, a former spouse or de facto spouse, a child, a stepchild, a grandchild or a parent) to change the way a deceased person’s assets will otherwise be distributed after death (i.e. pursuant to a will or in the event that where there is no will (intestacy) under the Administration Act (W.A.) 1903.

Broadly speaking these types of claim are based on financial need.

It may be that a settlement or compromise can be achieved without commencing proceedings (e.g. by signing a Deed of Family Arrangement).

If litigation is commenced (contentious proceedings) most matters settle before trial (often at mediation).

Typical claims concern spouses (including de facto spouses) and the children of the deceased from a former marriage although there are many other types of claims.

It is very important that Family Provision Act claims are filed at the court before the limitation period runs out (i.e. within the relevant time limit).

3. The Administration of Estates.

We are happy to act for executors and administrators of estates to guide them through the process of administering as an estate to distribution.

Legal Personal Representatives are required to call in the assets of the estate, pay the debts/expenses and distribute the remainder (the residue) plus any income thereon to the beneficiaries.

The duties of a legal personal representative (fiduciary duties) should not be underestimated and legal advice should be obtained.

In most cases (when the advice sought is reasonable and related and not personally motivated and there are sufficient assets in the estate to pay them) a legal personal representative’s legal costs will be paid in full (i.e. on an indemnity basis) by the estate.

The administration of an estate may require the executor to pay funeral expenses, take out insurance or otherwise preserve, protect and maximise the assets of the estate brackets (e.g. through investment, by earning interest and obtaining rent), to notify social security, to deal with banks, life insurance companies and superannuation Trustees, to obtain advice from an accountant regarding tax and duties obligations (including income tax and capital gains tax and stamp duty), to file ATO returns on behalf of the deceased and the estate, to publish Trustee Act notices, to notify creditors and debtors, to pay loans or call in loans and to deal with specific property brackets (e.g. cars and real property in specie) that need to be sold, conveyed and/or transferred (e.g. by a Transmission Application).

4. Wills/will validity

We can assist with:

  1. attempting to locate a lost will or to obtain a copy of a will;
  2. interpreting a will and other testamentary documents (such as by applying presumptions and rules of construction and considering conditional gifts);
  3. explaining what happens to a deceased person’s property when they do not leave a will or they leave a will that does not deal with all of their property (intestacy);
  4. challenging the validity of a will (e.g. because of lack of testamentary capacity, unsound mind, dementia, another disability, undue influence, duress, fraud, uncertainty, lack of knowledge or approval or mistake);
  5. giving you time to investigate whether a will is valid so that a grant with respect to it cannot be made for the time being (by lodging a probate caveat on your behalf or an application to extend your caveat);
  6. proving a will to obtain a grant or obtaining an order for letters of administration where there is no valid will.

5. Burial, Cremation

Usually the decisions made with respect to a person’s funeral are made by the legal personal representative of the deceased.

It is possible however to make application to the Supreme Court of Western Australia for specific orders naming whom has authority with respect to a corpse and/or the funeral and how and where that funeral/burial should be conducted.

6. Land Transfers and Joint Tenants

deceased estate land transfer joint tenantsThe Rule of Survivorship dictates that when a person who owns property (including land) jointly with another/others (“joint tenants”) dies then the survivor/s are entitled to the deceased’s interest in that property.

In these cases the property does not form part of the estate assets (and therefore it is not at risk of a Family Provision Act claim).

A Survivorship Application can be lodged by the survivor/s at Langate to effect a transfer of land.

Where land is registered in a person’s name solely or with another/others as a tenant in common and they die, a grant of probate will need to be obtained before it can be transferred into the name of the legal personal representative. It may then be transferred to a purchaser or to the beneficiaries of the estate depending on circumstances.

7. Other Probate Law Matters

We can also help with:

  1. managing a “life interest” or a right to occupy land created by a will;
  2. administering a trust fund created by will or as a consequence of death;
  3. creating or dealing with a mutual will agreement (say between spouses whom have children from different marriages);
  4. dealing with the Public Trustee of WA;
  5. dealing with criminal matters arising in relation to an estate (e.g. because of theft, trespass, unlawfully entry, fraud, forgery, contempt of court);
  6. dealing with the conduct of an attorney whom acted for the deceased before death through say an enduring Power of Attorney;
  7. claims for Executor’s commission/remuneration;
  8. searching the Supreme Court Probate Registry;
  9. commencing proceedings against a legal personal representative for breach of duty (including wilful default);
  10. issues arising as a result of a missing beneficiary;
  11. relinquishing a gift made under or will;
  12. obtaining the court’s direction or guidance regarding an estate matter;
  13. preparing an inventory, estate accounts and passing accounts in the Supreme Court of WA.


Executor Duties

Usual steps taken by an Executor:

1. Obtain the last Will of the deceased and look at whether the deceased expressed wishes in relation to the disposal of his/her body.

2. Notify the deceased’s beneficiaries and business associates of the death.
Read More

Deceased Estates Blog