Non Contentious Probate
What is a 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.
Fixed & Deferred Fees
Most people can’t afford big legal bills. You shouldn’t be worried about money when a loved one dies. In most estates we manage, fees are taken entirely from the estate once the assets become available.
The other unique approach or firm takes towards billing is that it does not provide time charged services. We only provide fixed fee quotes which never change. This avoids cost blow outs and over servicing which regrettably does occur within the legal profession.
Instant Engagement
The purpose of the meeting is to assist families to navigate the minefield of bureaucracy. If nothing more, we hope to help families understand the processes of winding up an estate from start to finish so that they are at least off on the right track.
We can assist our clients to send identification, approve quotes and cost agreements all at the press of a button. Secondly, our firm has developed long standing relationships with other professionals including but not limited to accountants, realtors, valuers, auctioneers and conveyancers.
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.
Special and limited grants of administration
When a person dies with a valid and properly prepared will, it is a relatively straightforward process to obtain a grant of representation (Probate) from the Supreme Court of Western Australia. On the contrary, when a person dies without a will (intestate) any one or more of the persons entitled to the distribution of the estate can apply for a grant of ‘letters of administration’. Notwithstanding, unique situations may arise which make the application for letters of administration far more complicated. In these unique situations, a ‘limited’ or ‘special’ grant of letters of administration may be necessary to progress the administration of a deceased estate. We have outlined some of those special grants below.
Letters of administration CTA /cum testamento annexo / With the will annexed
A grant of ‘letters of administration with the will annexed’ is otherwise known as letters of administration (cum testamento annexo). You might ask yourself if the deceased made a will, wouldn’t you apply for probate? That would be true if the deceased drafted their will correctly. Letters of administration CTA is necessary when the will meets the formality requirements of a valid will (eg it is signed and witnessed properly etc) but is deficient in the appointment of an executor. This can include failing to appoint a substitute executor and the sole executor predeceasing the deceased.
Letters of administration durante minore aetate/ During minority
An application of letters of administration (durante minore aetate) is made when a person(s) entitled to the grant is less than 18 years of age. This can arise where, the deceased suffered an untimely death and appointed a minor as the sole executor. In the usual circumstances, the letters of administration (durante minore aetate) will be granted to a person for the minor’s benefit. This type of grant is limited until the minor reaches full age and obtains a grant.
Letters of administration ad colligenda bona defuncti /to collect the goods of the deceased
Sometimes applying for probate or a full grant of letters of administration can be time consuming. A letter of administration (ad colligenda bona defuncti) appoints a limited administrator with authority to preserve property of the estate but not to distribute it. This grant is an urgent grant traditionally used for protecting perishable goods of the estate of preventing the estate from waste. For example, the deceased’s home may need to be sold on an urgent basis or the grant may be needed to continue the deceased’s business activities.
Letters of administration de bonis non administratis/of goods not administered
Whenever an appointed administrator has died and the estate remains wholly or partly unadministered, then another person may need to take over conduct of the estate’s administration. Upon the death of the executor (where the executor does not appoint an executor of their own), a beneficiary of the first deceased can apply for a letter of administration (de bonis non administratis).
Letters of administration durante absentia/during absence
A letters of administration (durante absentia) can be obtained when the sole legal personal representative is absent from Western Australia. This grant is limited and reserves the right for the absent legal personal representative to apply for a grant upon returning to Western Australia. This grant can enable the administration to be carried out. A precondition for obtaining this grant is that because of the legal personal representative’s absence is likely to cause the estate loss or waste.
Letters of administration durante dementia/during dementia
When the sole person entitled to a grant or when the sole legal personal representative becomes of unsound mind, then a letters of administration (durante dementia) can be obtained. Interestingly, all jurisdictions, except Western Australia, has legislative provisions relating to this type of grant.
Letters of administration pendente lite/pending litigation
When a dispute arises concerning the validity of a will, or obtaining, recalling, or revoking a grant, then the Court has the power to appoint an administrator pending the finalisation of the litigation. The administrator may have full or limited powers and be remunerated as the Court may think fit.
Letters of administration ad litem/to suit
A grant of letters of administration ad litem is often sought where the estate is required to urgently commence or defend legal proceedings, but a full grant of representation has yet been obtained and may take some time to obtain. A common example of this grant is where a party dies part way through a Family Court Litigation.
Probate Articles
What information should I bring to a consultation with a lawyer to obtain a grant of probate? GalleryWhat information should I bring to a consultation with a lawyer to obtain a grant of probate?
Deceased Estate Administration, Executor and Administration Services, Executor and Estate Administrator, home page, Independent Trustee Appointments, Non Contentious Probate
