Estate Administration

An overview of the situation:

When a loved one dies it is extremely difficult for the surviving family. Not only due to the emotional stress but the significant amounts of bureaucracy involved in finalising the Deceased’s affairs. There are extensive legal obligations imposed on executors and administrators. This exposes them to liability should the obligations not be properly fulfilled. After obtaining the benefit of advice, most families hand the file over to their lawyer or a professional trustee. By doing so they divest themselves of a heavy burden. We encourage all of our client’s to focus on their personal well being and to channel their energies into work or leisure.

INFORMAL administration:

In some estates it is possible to deal with the Deceased’s assets without the need to apply to the Supreme Court of Western Australia for a “grant of representation.” Probate of the Deceased’s Will, or a Grant of Letters of Administration if the deceased died “intestate,” (without a Will). Commonly, bank accounts, superannuation, life insurance, and certain interests in land are dealt with by producing the death certificate to the relevant authority. Families underestimate the time and effort required in liaising with these authorities. They often do not consider the veil of bureaucracy. In an informal administration, transactions which deal with realty require specialist skill and expertise. We would encourage you to consult with a lawyer or conveyancer should this be the case.

FORMAL administration:

Where the deceased owned a significant asset (more than $50,000.00) or is the registered proprietor of land (not subject to co-ownership by way of a joint tenancy) it is necessary to obtain a grant of representation from the Supreme Court of Western Australia in order to administer the estate.

Grant of probate:

A grant of Probate is an order of the Court which authorises an executor to act. On receiving the grant the Executor is entitled to call in and convert the assets of the estate, discharge liabilities, and distribute the estate assets according to the terms of the Will. In most cases, obtaining a grant of probate is a non-contentious administrative process. Family members underestimate the time and effort involved preparing the application. There are strict rules which you must follow. Improperly completed applications require further clarification from the court this results in delay in finalising the estate.

In some cases, the Will itself is defective. This complicates the application process. For example, the Will may not have been properly executed. The Will may contain marks, staple holes, or other damage, which raises a presumption that something was attached to it. The deceased may have suffered dementia prior to the date of their death. This raises the court’s curiosity as to whether, or not, the deceased had capacity to understand the will on the date it was signed. These kinds of applications require specialised affidavits.

Letters of administration:

Where nobody has been appointed to be the legal personal representative by a Will, a family member (or other person) may apply to the court to be appointed. These applications are commonly non-contentious. However, there is a long list of criteria which must be met before the court approves the application. The consent of every person eligible to apply for grant must be sought. If the Deceased left an infant child surviving them the application becomes significantly more complex. There are no “pro-forma” application forms for these kinds of applications. It is strongly recommended that you consider advising a specialist to assist you in making intestate applications to the Court.

Testate versus intestate administration:

When a person dies leaving a Will determining who the ultimate beneficiaries are and the extent of their entitlements is a pretty straight forward process. This is done by reference to the terms of the will and is known as “testate distribution.” By contrast, were a person dies without a will determining who is entitled is more difficult. “Intestate distribution” is governed by the terms of s14 of the Administration 1903 (WA). S14 contains a table of various kinds of family backgrounds. It specifies, depending on who has survived the Deceased, what share each family member is to receive. An extract of the s14(1) table is mentioned below: