What property can be disposed of under a valid will?

The property of the deceased estate

In WA, a deceased estate includes all the property of a deceased person under the Wills Act 1970 and may include (for example):

• land solely owned or owned tenants in common with another person;

• an interest in land (eg. a lease); • personal property (eg. bank account, car,

shares, life insurance, patent or money).

The property of a deceased person also includes property which the deceased person was entitled to at the time of their death (eg. a right to damages arising from a judgment of a Court).

The property of a deceased estate which is administered following a grant of Probate or Letters of Administration specifically excludes:

• Property owned by the deceased person as a joint tenant. The most common form of joint tenancy is land held by spouses as joint tenants.  All property held as joint tenants becomes the property of the surviving joint tenant(s);

• Property held by the deceased person as trustee.

Superannuation death benefitsA deceased person’s superannuation death benefits will only form a part of their deceased estate if:

• The deceased person has signed a valid binding death benefit nomination which directs the trustee of the superannuation fund to pay the death benefit to the Executor / Executrix;

• If there is not a valid binding death benefit nomination, the trustee of the superannuation fund exercises their discretion to pay the death benefits directly to one or more of the deceased person’s dependants.

Property outside of Western Australia

The Supreme Court of Western Australia cannot make a grant of Probate unless the deceased person left some property in WA.

If the deceased person has any property outside of WA but in Australia, you may be required to apply to reseal the original grant of Probate or Letters of Administration in each State or Territory of Australia where property is located.  Whether resealing is required will depend upon the nature of the property.  There may also be procedural requirements such as publishing a notice of an application to reseal a grant of Probate.

If the deceased person has any property outside of Australia, the process will depend upon the country where the property is located.  Generally, Commonwealth countries and former colonies of England permit the resealing of the grant of Probate or Letters of Administration made in WA.

Role of the Executor / Executrix

• The deceased person’s will may not specify all of their property, or their property may have changed since the execution of their will.

• It is important the Executor / Executrix of a deceased estate identifies all of the property of the deceased so as to ensure that they protect the assets of the estate and apply for a grant of Probate or Letters of Administration so that all the deceased person’s property can be disposed of under the will or under the laws of intestacy.

Need assistance with a grant of Probate or Letters

of Administration?

The team of experts at Robson Hayes Legal can prepare the Court documents necessary for a grant of Probate or Letters of Administration.  Call Probate WA Lawyer on  (08) 9322 2256   or email us at contactus@probatewa.lawyer to discuss your probate and deceased estate issues.