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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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What are the Success Rate and Reasons for Contesting a Will?

74% of family provision claims by family (children or partners, including ex-partners) were successful.
See:  Tilse, C., Wilson, J., White, B., Rosenman, L. & Feeney, R. (2015), “Having the Last Word? Will Making and Contestation in Australia”.  The University of Queensland.

 

Most wills are contested under family provision legislation.
Studies undertaken by the University of Queensland in 2015 found that:
·         86% of claims are brought by immediate family: either children of the deceased (63%) or partners (including ex-partners) (23%) – This means adult children are the most common claimants in Will contests.
·         Contestation is most commonly driven by both exclusion and significant disparity in distribution.

·         When there is a contestation, there is a high rate of success, whether through the Court or through mediation.  74% of family provision claims by family (children or partners, including ex-partners) were successful.

 

COMMON REASONS FOR CONTESTING A WILL

Contesting a Will refers to claims pursuant to the family provision legislation.
The said studies also found that contestation is most commonly driven by:
·         Inadequate provisions to meet the needs of a family member.
·         Type and quality of relationship with the deceased.
·         Exclusion and significant disparity in distribution, where a family member felt a sense of entitlement to a better distribution.

SIGNIFICANCE OF FINDINGS

The above findings are significant to:
·         The Will maker:
With 51% of estates contested were through family provision claims, if you are making  a will, you need to give very careful and detailed considerations to how you should distribute your assets. The more complex the family relationships, the higher the chance of your Will being contested and there being a dispute between your family members upon your death.
At the time of making your Will, you need to consider ways to reduce contestation risk by addressing underlying family dynamics and issues – such as obtaining strategic advice from lawyers, obtain counselling, properly communicate with family, etc. 
·         The Executor or Administrator:
It is highly likely that the deceased representative who has obtained grant of Probate or Letter of Administration (i.e. the executor or the administrator) may find himself or herself having to spend a lot more time dealing with legal proceedings, engage lawyers to defend the contestation, and obtaining expert evidence to defend against a claim, as opposed to getting on with the task of actually administering the estate. This can be extremely time-consuming.
·         A family member who can be a potential claimant:

There is a high success rate for a family member who is seeking family provisions from a deceased’s estate.  Despite there being a Will in place, the Court has the discretion to make orders and award provisions to a family member.


About the Writer

Kelvin Tang

Kelvin has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing service on Commercial Law, Dispute Resolution & Litigation, Family Law, Wills & Estate Planning and Settlements.