When a person dies, what must be done before the assets can be distributed to the beneficiaries?

 If the deceased left a will, the executor named in the will must make an application to the Supreme Court for a grant of probate. When probate is issued, the executor has the power to collect the assets of the estate. Thereafter, the executor pays the liabilities of the estate including any tax payable. The net assets are then distributed to the beneficiaries named in the will.

If the deceased did not leave a will, the deceased is said to have died “intestate” and the beneficiaries are determined by law. A beneficiary then makes an application for letters of administration where the beneficiary is appointed the administrator of the estate. Once issued, the administrator has the power to collect the assets of the estate. The liabilities are then paid, and the net assets distributed to the beneficiaries.

If the deceased left a will, must all wills go through probate in Australia? What if the deceased did not leave a will, must all deceased estates without a will obtain letters of administration?

The short answer is that it depends on the nature of the assets left behind by the deceased.

The grant of probate or letters of administration must be obtained if the deceased’s estate has assets to be collected for distribution to the beneficiaries. For example: –

• The deceased held property in the deceased’s sole name. For the executor to have power to sell the property so that the proceeds of sale can be distributed to the beneficiaries, the executor must obtain the grant of probate or administration
• The deceased held a large sum of money in a bank account. For the executor to have the power to access the bank account so that the money can be distributed to the beneficiaries, the executor must obtain the grant of probate or administration.
• Superannuation funds held by the deceased falling under the deceased’s estate. This may occur when the deceased has made a written nomination lodged with the superannuation fund for his or her superannuation funds to be paid to the estate or if the superannuation fund rules state that the superannuation funds are to be paid to the deceased’s estate. Here, the grant must be obtained for the funds to be released for distribution to the beneficiaries.

In certain cases, the grant of probate or administration is not required as the asset does not fall within the deceased’s estate or the value is small.  For example: –

• The deceased held real estate with another person as “joint tenants”. In this case, probate is not required as the deceased’s interest in the real estate does not fall within the deceased’s estate.  Instead, the deceased’s share in the real estate passes to the surviving co-owner of the property.
• The deceased held a small amount in a bank account. Some banks may not insist on the production of the grant of probate or letters of administration for small deposits held with the bank to be released for distribution to the beneficiaries.
• The deceased held superannuation funds. Depending on the rules governing the superannuation fund, the funds in the deceased’s superannuation account may not fall within the deceased estate to be distributed to the beneficiaries named in the will or determined under the law, if the deceased did not leave a will. Instead, the funds will be paid to the person nominated by the deceased in a written nomination form lodged with the superannuation fund. If no nomination form had been lodged, the funds will be paid out to the dependants of the deceased. Under superannuation fund rules, “dependants” would include the surviving spouse or de facto partner, the former spouse or de facto partner, children under 18 years of age, a person who was financially dependent on the deceased at the time of death and a person who was in an interdependent relationship with the deceased at the time of death.

When can an application for probate or administration be made?

An application for a grant of probate or letters of administration can only be made 14 days after the death of the deceased. This application must be filed with the Probate Registry of the Supreme Court of Western Australia.

If the deceased left a will, you would need the original will for lodgement when making the application for a grant of probate.

You would also need a list of the deceased’s assets and liabilities to make an application for a grant of probate or letters of administration.

How long does Australian probate take?

Once lodged with the Supreme Court of Western Australia, it would take about 4 to 8 weeks for probate or letters of administration to be issued by the court.

In appropriate cases, a letter can be written to the court to expedite the issuance of the grant of probate or letters of administration.

What happens if there is a dispute about the deceased estate?

 Estate disputes can arise in many ways. A family member may challenge the validity of the will on the basis that the deceased lacked mental capacity to make the will.  In this case, probate cannot be granted until this issue is resolved. In other cases, a person left out of a will or given a small inheritance may seek a share or a greater share of the estate on the basis that the will does not properly or adequately provide for his or her needs. If such disputes arise, they must be resolved before the assets of the deceased can be distributed to the beneficiaries. It is important that parties do their best to try and resolve these disputes without court proceedings to save legal costs which may take up a substantial portion of the assets of the deceased and leave a much smaller sum for distribution to the beneficiaries.

Contact Robertson Hayles Lawyers at (08) 9325 1700 or by email at enquiry@robertsonhayles.com for legal assistance in all deceased’s estate matters including applying for a grant of probate or letters of administration, collection and distribution of the estate or resolving estate disputes.

Note

The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive, nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.