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WHAT IS PROBATE AND WHY DO I NEED A GRANT OF PROBATE?

 

What is probate?

Probate is simply the process in which a deceased’s person’s Will is proved by a court as being the last valid Will of the deceased person. In Western Australia the appropriate court is the Supreme Court of Western Australia. Similarly, in other Australian states and territories, the appropriate court is the Supreme Court of that place.

A Grant of Probate confirms that the executor named in the deceased person’s Will has the legal right to deal with deceased person’s estate (i.e. their property, money and possessions).

If the deceased person did not leave a Will, then the grant obtained from the Supreme Court is known as a Grant of Letters of Administration. There are also other types of grants, however these two are the most commonly encountered.

Although there are some technical differences between executors and administrators, for most practical purposes, the roles are essentially the same. In this article we will use the term “Legal Personal Representative” to cover both executors and administrators, and the term “Grant of Representation” to cover both types of grant.

Why do I need it?

A Grant of Representation is evidence to the world at large that the Legal Personal Representative that a person has the right to deal with the deceased person’s estate.

Further, a Grant of Representation is needed to deal with certain types of assets, such as land, bank accounts, shares, superannuation and insurance. Often without a Grant of Representation, Landgate, banks, share registries, superannuation funds and insurance companies will not deal with a person who needs to administer a deceased person’s assets.

There are circumstances when a Grant of Representation may not be needed, for example:

  • the deceased person did not own any assets in Western Australia (a Grant of Representation may be required in other jurisdictions where the deceased person owned any property)
  • if all of the deceased person’s assets were held with other others jointly (such as land, shares or money) as these assets will automatically pass to the surviving owner(s)
  • shares owned by the deceased have a market value of less than $15,000
  • the bank accounts of the deceased have a balance of less than $10,000 (the precise balance before a bank requires a Grant of Representation this varies between banks)
  • the deceased person’s estate comprises only of personal and household effects

How do I obtain a grant of probate?

The executor named in the deceased person’s Will must make an application to the Supreme Court. If the court is satisfied with the application, the court will issue a grant of Probate. If the court is not satisfied with the application, it may issue a requisition notice. A requisition notice is simply a notice which advises that there is a defect with the application or the court requires more information.

The deceased person’s original Will is retained by the Supreme Court, however a copy of the Will is attached to the Grant of Probate.

How long does it take?

An application can be made at any time after fourteen days from the death of the deceased person. It is necessary for the deceased’s death certificate to be provided in the application.

Once an application for a Grant of Representation is lodged in the Supreme Court, a Grant of Representation generally takes around four to eight weeks, however, this is dependent on the court’s workload.

Please note that this general information only and does not constitute legal advice. If you would like further information or assistance in relation to this issue or other legal issues, please contact Tang Law on (08) 9328 7525 or enquiries@tanglaw.com.au.

 
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How To Deal With Interests In Superannuation?

DEALING WITH INTERESTS IN SUPERANNUATION

It is a common misconception that superannuation automatically forms part of your estate when you pass away. Unless you have a binding death nomination entitling your legal personal representative to your superannuation benefits, or the trustee of your superannuation fund makes a decision to pay your benefits to your estate, your superannuation will not be considered an asset of your estate.  

Failing to have an estate plan that deals with your superannuation therefore leaves your superannuation entitlements at risk of being distributed otherwise than in accordance with your wishes. 

 

The only way to guarantee your wishes are followed is to have a valid binding death nomination (BDBN) in place. Even if your will includes a reference to the beneficiaries you would like to receive your superannuation, this is non-binding on the trustees of a superannuation fund unless you have a valid BDBN in place.  Failing this, your intended beneficiaries may be left with substantial uncertainty awaiting a decision from the trustees of the fund.
Without a valid BDBN, the trustees of the fund will have discretion as to whom, and in what shares, to pay your benefits to. The class of people entitled will depend upon the rules of the superannuation fund and the Superannuation Industry (Supervision Act) (SISA) and Regulations.
The SISA specifies “death benefit dependants” as the member’s spouse or de facto spouse, any child of the member, or any person who was in an interdependency relationship with the deceased (where both provided financial, domestic and personal support to one another).  

An example highlighting why a BDBN is essential is found in the case of Katz v Grossman. In summary, an elderly man passed away with approximately $1 million in his self-managed superannuation fund (SMSF). The deceased member’s daughter was the sole surviving trustee of the SMSF.

 

The deceased member’s will stated his wish for his superannuation benefits to be split between his two adult children, however he did not have a BDBN.

 

Due to the requirements imposed by the SISA as detailed below, the daughter acted quickly to appoint her husband as another member and trustee of the fund and promptly paid out the entirety of the father’s benefits to herself with no provision made for her brother.

 

In litigation commenced by the son, the Court ultimately found that the deceased’s members will was non-binding on his daughter as the remaining trustee of the fund, and that she had acted lawfully within her powers as the surviving trustee.

 

Without a BDBN in place, your beneficiaries will often have limited recourse against a trustee who decides to act in their own interests at the expense of other family members.

 

There are a number of cases similar to this, including in Western Australia, that show you cannot necessarily rely on even close family members to carry your wishes into effect if they are not enshrined in a binding death benefit nomination.

 

Provided a BDBN has been prepared in strict accordance with the requirements of the fund and SISA, the instructions should be binding on the trustee. This should provide greater certainty to your beneficiaries that if you were to die without a BDBN in place.
                                                                                                                                                                   

REQUIREMENTS OF THE SISA

All members of a self-managed super fund are required by the SISA to be trustees of the fund, or directors of the corporate trustee of the fund. If the fund is a single member fund, the member must be one of two individual trustees or a single director of the trustee company.

 

When a member dies or is incapacitated the member can no longer be a trustee or director of the trustee company which means the fund is no longer compliant with the Act.

Section 17A(4) of the Act gives the fund a period of 6 months after the death of a member to either distribute the member’s benefit, convert to a single member fund (in the case of a 2 member fund) or appoint the legal personal representative of the member as the replacement trustee or director. If this is not done within 6 months of death, the fund will no longer be compliant with the Act for which there may be taxation implications.

 

Where the fund is a two member SMSF, the remaining trustee has six months to introduce new members to retain its status under s 17A(1) or convert to a single member fund under s 17A(2) and pay out the deceased members entitlements – either in accordance with a BDBN or if none is in existence, at the trustee’s discretion.

 

With single member funds, major issues can arise in trying to ensure the fund remains compliant under the Act after the expiry of 6 months, most particularly where the member dies without a will. Not only does an application for administration of an Estate tend to be more complex where someone has died without a will, but delays in appointing a replacement trustee or director of a corporate trustee for a SMSF often result where there is a dispute between the administrators about how the superannuation entitlements are to be paid out.

 

I’ve seen a number of these disputes arise particularly with blended families, where a current spouse and adult children from a previous marriage may all be entitled to administration. In these circumstances negotiations can drag on for many months over how the superannuation will be distributed.
                                                                                                                                                                   

SUPERANNUATION AND FAMILY PROVISION CLAIMS

Despite the pitfalls that accompany superannuation, it is an asset that can be of great assistance to testators who anticipate family provision claims being made against the estate.

 

This is because, as mentioned earlier, superannuation is typically dealt with outside of the estate, unless there is a BDBN nominating the legal personal representative or the trustees of the fund determine that the benefits are to be paid to the estate.

 

Having a BDBN in place will ensure the payment of the superannuation benefits is not easily open to attack by a disgruntled party. 

 

Furthermore where superannuation is the largest asset to which the deceased was entitled and is dealt with outside of the estate pursuant to a valid BDBN, a potential claimant may not consider it worthwhile to commence an application for family provision. This may be so where the estate is not of a significant value – as currently any order for family provision would apply only to assets of the estate and would not extend to assets dealt with outside the estate.

 

Using superannuation can be of particular assistance to remarried spouses who wish to protect one another from family provision claims by step-children. Since 16 January 2013, step-children have been included as “entitled parties” to apply for provision from a step-parents estate where (a) they were financially dependent on the step-parent; or (b) the step-parent received more than $460,000 from the natural parent’s estate (where the natural parent predeceased the step-parent).

 

An estate plan can be structured so that, if the superannuation entitlements are large enough, they can provide solely for the spouse rather than bequeathing the spouse substantial assets through the estate – which may thereby leave it open to a family provision claim. In this way the step-parent avoids receiving any substantial benefit directly from the estate and can protect their own estate from a family provision claim by a step-child.


Writer:

Kim Samiotis is the Senior Solicitor of TANG Legal. Her areas of practice include Building Disputes Litigation, Wills and Estates Planning, Succession Planning, Deceased estates and Estate disputes. There are many criteria and conditions that apply to each of the categories and the experienced solicitors at Tang Legal are happy to provide further information on your eligibility to make or defend a claim.

T:  (08) 9328 7525 | E:  enquiries@TangLegal.com.au