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Estate Administration

WA

This publication assists practitioners in Western Australia who are acting for executors and administrators in estate matters.

2 Matter Plans

Overview

The publication comprises 2 guides to assist practitioners in obtaining a grant of probate or letters of administration. The commentaries cover obtaining the grant, collecting the assets, and distributing the estate in accordance with the will or the rules of intestacy.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents. The comprehensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter.

Precedents in this publication include:

  • Letters to the executor or administrator and beneficiaries at various stages;
  • Libraries of letters to asset holders – initial and final;
  • Letters and forms for executor or administrator commission;
  • Deeds of release and indemnity;
  • Deeds of family arrangement;
  • Statement of assets, liabilities, and distribution;
  • Letter to beneficiaries with distribution;
  • Final letters to executor or administrator – concise and extensive.
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2 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Probate (WA)
  • Folder icon Reference materials
    • Item icon AI Prompts
      An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...

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    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon 101 Costs Answers
    • Folder icon Papers and articles - Wills and estates
      • Item icon Estate planning - An exciting opportunity for small law firms
      • Item icon Executor's commission 1 - Executor's commission and the professional executor
      • Item icon Executor's commission 2 - Horns of a dilemma
      • Item icon Executor's commission 3 - A fiduciary duty
      • Item icon Improving written submissions - A paper by Judge Alan Troy
      • Item icon Plain language – A paper by the Hon. Michael Kirby AC CMG
      • Item icon To accept or not accept instructions in urgent will matters
      • Item icon Wills and estates - Death in the house
    • Item icon Further information
  • Item icon Overview
    Types of grant The types of grant that may be sought include:

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Probate
    • Item icon To do list - Probate
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Retainer instructions - Estate administration
    • Item icon Conflict of interest check
    • Item icon Initial letter to spouse executor
    • Item icon Initial letter to executor
    • Item icon Initial letter to executor with duties when small estate and we are not acting
    • Item icon Costs agreement - Estate administration - WA
    • Item icon Standard costs disclosure form for clients - Fees under $3000
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Item icon Enclosure - Information sheet
    • Item icon The deceased
      Cause of death It is important to consider if the cause of death gives rise to any compensation or damages, for example, death as a result of a motor vehicle or work accident.

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    • Item icon Client engagement
      Of note:

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    • Item icon Is a grant required?
      Small estates There is no statutory requirement to obtain a grant. Section 139 of the Administration Act 1903 allows authorised deposit-taking institutions (ADIs) to release funds – up to $50,000 – if within 1 month of the death of a deceased person:

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    • Item icon Funeral expenses and other creditors
      Funeral expenses As stated above, in order to pay a person’s funeral expenses most banks will allow funds to be withdrawn from the estate before a grant is obtained: s 139 of the Administration Act 1903.

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    • Item icon Executors
      What is an executor? An executor is a person, either an individual or a trustee organisation, appointed by the will to administer a deceased’s estate. A female may be termed ‘executrix’.

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    • Folder icon If required - Renunciation
      • Item icon Renunciation
        There is no compulsion upon any named executor to take up the role. They may renounce their right to apply for probate. The only time this may not be allowed is if the executor has already intermeddled with the estate. Renunciation extinguishes the right to a grant of probate to that person: s 32 ...

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      • Item icon Letter to executor requesting renunciation for administration
      • Item icon Renunciation of probate
    • Folder icon If required - Revocation of grant of probate or administration
      • Item icon Motion for revocation of grant of probate or administration
      • Item icon Affidavit (General)
    • Item icon Estate taxes, superannuation and deeds of family arrangement
      Estate taxes

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    • Folder icon If required - Notice and consent where leave to apply
      • Item icon Notice form
      • Item icon Consent form
      • Item icon Letter enclosing notice and consent to non-applying executor
      • Item icon Affidavit (General)
    • Folder icon If required - Authority previous solicitor
      • Item icon Letter to another solicitor with authority to obtain documents
      • Item icon Authority of executor to obtain will from another solicitor
      • Item icon General authority to hand over documents
    • Folder icon Beneficiaries
      • Item icon Beneficiaries
        Who is a beneficiary? A beneficiary is a person or entity to whom a bequest is made in a will. However, for the named person to be a beneficiary, both the will and the bequest must be valid. It is incumbent upon an executor to establish the validity of the will and then to administer the estate ...

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      • Item icon Initial letter to beneficiaries re probate application
      • Item icon Initial letter to beneficiaries re application for probate where client is alternate or remaining executor
      • Item icon Deed of disclaimer - Probate
      • Item icon Clause - Statutory declaration of beneficiary under will
      • Item icon Statutory declaration - blank - WA
      • Item icon Search enquiry form
    • Folder icon Births, deaths & marriages
      • Item icon Letter to Registry of Births, Deaths and Marriages applying for death certificate
    • Item icon Challenging the validity of a will
      Challenging a will questions its validity. Contesting a will questions the fairness of its provisions.

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    • Folder icon If required - Caveats
      • Item icon Caveats on grants
        When a challenge to the terms of a will is contemplated prior to the grant of probate, it is necessary to put the court on notice of the proposed challenge. This may be achieved by lodging a caveat, which ensures that the caveator will be notified and has the opportunity to approach the court ...

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      • Item icon Letter to caveator's solicitor for details
      • Item icon Letter to client re the caveat
      • Item icon Caveat
      • Item icon Affidavit (General)
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
      • Item icon Standard annexure note for documents
  • Folder icon B. Gathering information
    • Folder icon Library of initial general letters
      • Item icon Initial letter to Centrelink
      • Item icon Initial letter to Medicare
      • Item icon Initial letter to Electoral Roll
      • Item icon Advice of death for Centrelink, Medicare
    • Folder icon Library of initial letters to asset holders
      • Item icon Initial letter to bank building society
      • Item icon Initial letter to nursing home
      • Item icon Initial letter to health insurer
      • Item icon Initial letter general cancellation of membership
      • Item icon Initial letter to deceased's accountant
      • Item icon Initial letter to deceased's employer
      • Item icon Initial letter to superannuation fund
      • Item icon Initial letter to deceased's stockbroker for portfolio details
      • Item icon Initial letter to company for debenture particulars
      • Item icon Initial letter to company or registry for share particulars
      • Item icon Initial letter to government department re motor vehicle
      • Item icon Initial letter to deceased's insurer for policy details
      • Item icon Initial letter to deceased's insurer for details of bonds
      • Item icon Initial letter to mortgagee requesting mortgage details and transfer requirements
    • Item icon Initial letter to creditor
    • Folder icon If required - Where cause of death leads to compensation
      • Item icon Cause of death
        It is important to consider if the cause of death gives rise to any compensation or damages, for example, death as a result of a motor vehicle or work accident.

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      • Item icon Initial letter to CTP insurer
      • Item icon Initial letter to workers compensation insurer
  • Folder icon C. Probate
    • Item icon Applying for probate
      Grants of probate may take two forms.

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    • Item icon Motion for probate
    • Item icon Affidavit of executor - Application for probate
    • Item icon Statement of assets and liabilities template
    • Folder icon If required - Library of less common affidavits
      • Item icon Affidavit (General)
      • Item icon Clause - Affidavit by firm - Condition and finding of the will
      • Item icon Clause - Affidavit by executor - Condition and finding of the will
      • Item icon Clause - Affidavit by person with knowledge - Condition and finding of the will
      • Item icon Clause - Affidavit by subscribing witness - Condition and finding of the will
      • Item icon Affidavit of attesting witness
    • Item icon Letter to court enclosing probate application
    • Item icon Surety's guarantee
    • Item icon Letter to executor after grant
  • Folder icon D. If required - Reseal
    • Item icon Reseal
      A grant in a deceased estate authorises the legal personal representative to deal with that part of the deceased’s estate situated within the jurisdiction of the court making the grant. A ‘reseal’ means to seal with the seal of the court of a second jurisdiction documents that evidence the grant of ...

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    • Item icon Motion for reseal
    • Item icon Affidavit in support of application for reseal
    • Item icon Surety's guarantee on application to reseal
    • Item icon Letter to court enclosing application for reseal
  • Folder icon E. If required - Application for executor commission
    • Item icon Executor commission
      A will may make provision for an executor to be paid commission. Alternatively, application may be made for executor commission to be paid pursuant to s 98 of the Trustees Act 1962. Executors are entitled to receive a ‘just and reasonable’ commission which is capped at a maximum of 5% of the gross ...

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    • Item icon Agreement to pay commission
      In practice the award of commission is usually agreed between the personal representative and the interested beneficiaries. The amount of commission is usually no more than 1-2% of the estate. It is discretionary and an executor seeking commission should be aware that the court may not award any ...

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    • Item icon Application for commission
      Consideration should be given by an executor or administrator to them passing accounts for the estate at the Supreme Court of Western Australia before an application for commission is made. The application for commission is incidental to passing or verifying accounts with the court. The entire ...

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    • Item icon Letter to executor entitled to claim commission
    • Item icon Letter to beneficiary re claim for commission
    • Item icon Notice of filing accounts
    • Item icon Accounts of executors and administrators
  • Folder icon F. Dealing with assets/administration
    • Item icon Dealing with assets/administration
      Dealing with assets Depending upon the nature of the estate and the sophistication of the legal personal representatives, some executors may wish to deal with administration themselves, setting up an interest bearing estate account to consolidate funds before distribution, and so on. This will also ...

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    • Folder icon Verification of identity
      • Folder icon Library of identity and authorisation forms - WA
        • Item icon Verification of identity certificate
        • Item icon Client authorisation
        • Item icon Identifier declaration
        • Item icon Identity agent certification
        • Item icon Australian Embassy/High Commission/Consulate certification form
    • Folder icon Library - Letters and forms - Finalising estate accounts and property
      • Item icon General collection letter
      • Item icon General reminder letter
      • Folder icon Bank
        • Item icon Letter to bank building society for account proceeds
        • Item icon Certificate of identity for bank withdrawal forms
      • Folder icon Real property
        • Item icon Transfers of real property
          A survivorship application will be necessary to transfer any jointly owned property to the surviving proprietor. Property owned solely by the deceased or as tenants in common may need to be transferred into the executor’s name. An application by personal representative should be lodged and the ...

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        • Item icon Foreign resident capital gains withholding payments
          The foreign resident capital gains withholding payments provisions of the Taxation Administration Act 1953 came into force on 1 July 2016. Essentially, when real property is transferred, the transferee is required to withhold 15% of the purchase price and remit this sum to the Australian ...

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        • Item icon Letter to bank building society for application by survivor
        • Item icon Statutory declaration - blank - WA
        • Item icon Transfer of land - T1
        • Item icon Letter to bank building society for application by personal representative
        • Item icon Letter to law stationer enclosing documents for registration
      • Folder icon Insurance and superannuation
        • Item icon Letter to deceased's insurer for payment
        • Item icon Letter to health insurer for payment
        • Item icon Letter to superannuation fund on transmission
        • Item icon Letter to deceased's insurer cancelling home insurance
      • Folder icon Shares
        • Item icon Letter to company debenture transmission
        • Item icon Letter to company shares transmission
        • Item icon Transmission application - Company shares for deceased matters
        • Item icon Section 1071B Statement
        • Item icon Transfer of shares
      • Item icon Letter to government department for transfer of motor vehicle registration
      • Item icon Statutory Declaration - Deceased Estates
      • Item icon Letter to nursing home for payment
    • Folder icon If required - Deeds of family arrangement
      • Item icon Deeds of family arrangement
        Prior to preparing a deed of family arrangement, some research must be carried out to ensure a client is advised of all the potential consequences, including the implications and requirements of any applicable taxation or duty issues, and the effect on any duty exemptions which might otherwise ...

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      • Item icon Deed of family arrangement - Life tenant and remainderman
      • Item icon Deed of family arrangement
    • Folder icon If required - Gifts to charities
      • Item icon Letter to charitable institution beneficiary discussing residuary legacy
      • Item icon Letter to charitable institution beneficiary discussing pecuniary legacy
      • Item icon Letter to charitable institution beneficiary discussing specific legacy
    • Item icon Letter to executor advising assets sold
    • Item icon Letter to creditor paying account
  • Folder icon G. Distribution
    • Item icon Payment of debts
      The executor must not unnecessarily diminish the estate by paying claims they are not bound to pay and should try to preserve specific bequests.

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    • Item icon Estate fees
      For work carried out up to the grant, and post-probate services such as collecting assets or transferring assets into the names of the beneficiaries, solicitors may charge as per the general provisions of the Legal Profession (Solicitors Costs) Determination, or at an agreed rate set out within a ...

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    • Item icon Accounts
      Keeping proper accounts Executors should be aware of the necessity to maintain complete and accurate administration records.

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    • Item icon Distribution of estate assets
      Section 63 of the Trustee Act 1962 provides that, if an executor publishes notice by advertisement calling for claims against the estate by creditors or other claimants to be notified to them by a specified time, after that date the distribution may be made to those of whom the executor has ...

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    • Folder icon If required - Interim distribution
      • Item icon Interim distribution
        Depending on the circumstances of the estate it may be appropriate to make an interim distribution to the beneficiaries of part of their entitlement: s 59 Trustees Act 1962. Keeping in mind s 63, the executor should only do so if they are certain that the estate retains sufficient funds to cover ...

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      • Item icon Letter to beneficiary on interim distribution enclosing statement for approval
      • Item icon Statement of assets, liabilities and distribution
    • Item icon Example content - Notice by advertisement calling for claims on an estate
    • Folder icon If required - Passing accounts
      • Item icon Accounts of executors and administrators
      • Item icon Notice of filing accounts
    • Folder icon Distribution prior to 6 months
      • Item icon Letter to executor with final accounts and distribution - Prior to 6 months
      • Item icon Letter to beneficiary on distribution - Prior to 6 months
      • Item icon Statement of assets, liabilities and distribution
    • Folder icon If required - Deeds of release and indemnity
      • Item icon Deed of release and indemnity - No grant
      • Item icon Deed of release and indemnity - Distribution - Without notice of claims
      • Item icon Deed of release and indemnity - Distribution - With notice of claims
      • Item icon Deed of release and indemnity - Executors commission
    • Folder icon Distribution after 6 months
      • Item icon Letter to executor with final accounts and distribution - After 6 months
      • Item icon Statement of assets, liabilities and distribution
    • Item icon Letter to beneficiary enclosing specific bequest
    • Item icon Letter to beneficiary with distribution of residue
  • Folder icon H. Finalising the matter
    • Item icon Final letter to executor - Concise
    • Item icon Final letter to executor - Extensive
    • Item icon Example invoice incorporating notification of client's rights - WA
    • Item icon Invoice recital - Estates
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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