1. Drafting Wills
We can prepare your Will and advise on important matters such as choosing an executor to administer and distribute your estate in accordance with your wishes after your death
2. Drafting Enduring Powers of Attorney and Guardianship
An Enduring Power of Attorney is a formal legal document appointing a trusted person or persons to manage your financial and property related affairs in the event that you no longer have the capacity to do so due to illness or mental incapacity.
An Enduring Power of Guardianship is a formal legal document authorising a trusted person or persons to make important personal, lifestyle and treatment decisions on your behalf in the event that you become incapable of making these kinds of decisions for yourself.
3. Application for Probate
When a person has died leaving a Will in most cases their Will states who they wish to be the executor of the Will. This can be one or more persons nominated by the testator in the Will. The role of an executor is deal with the deceased person’s estate by carrying out the terms of the Will in accordance with the testator’s wishes.
An executor has no authority to deal with the assets of the deceased until the Will is formally proven. The legal process of proving a Will is known as Probate. If you have been named as the executor in the Will of a person who has died we can provide you with legal advice and draft all of the necessary documents to assist you in applying for a Grant of Probate from the Supreme Court of Western Australia.
4. Application for Letters of Administration
Where a person has left a Will without nominating an executor or where the person dies intestate (without leaving a valid Will) an eligible person can apply for a Grant of Letters of Administration which will enable them to act as the administrator of the estate.
In the case of an intestate estate, the administrator after a Grant of Letters of Administration has been issued, is required by law to deal with the assets of the estate in accordance with the provisions of the Administration Act 1903 (WA).
Prime Law can provide you with legal advice and draft all of the necessary documents to assist you in applying for a Grant of Letters of Administration from the Supreme Court of Western Australia.
5. Application for Letters of Administration with the Will Annexed
In the case of a person who has died leaving a valid Will but where they did not nominate an executor in the Will or where the executor nominated in the Will is no longer able to act as the executor of the estate, an eligible person can apply for a Grant of Letters of Administration with the Will Annexed. After the Grant of Letters of Administration with the Will Annexed has been issued by the Supreme Court of Western Australia the administrator appointed is required to deal with the estate in accordance with the terms of the Will.
Prime Law can provide you with legal advice and draft all of the necessary documents to assist you in applying for a Grant of Letters of Administration with the Will Annexed from the Supreme Court of Western Australia.
6. Probate Caveats
A Probate Caveat is a document filed in the Supreme Court of Western Australia that prevents the Court from issuing a Grant of Probate of a Will or Letters of Administration of a deceased person’s estate.
Probate Caveats are used to preserve the right of either an executor or administrator or a beneficiary of an estate to obtain a grant from the Court in an estate where there are genuine and serious concerns about the validity of a Will, the existence of other Wills and/or the actions of other parties.
If you wish to file a Probate Caveat Prime Law can advise you on whether you have reasonable grounds to do so. We can also prepare the necessary documents to be lodged in the Supreme Court of Western Australia.
7. Survivorship Applications
Where any person registered with another as a joint tenant dies, the surviving joint tenant must apply to be registered as the surviving proprietor on the property title register.
Although the interest of a joint tenant ceases immediately on death and the surviving joint tenant’s interest is immediately enlarged, the legal estate does not change until the required application is made and the Landgate title register amended.
Prime Law can assist you in preparing and lodging your survivorship application with Landgate. This process results in the issue of a new Duplicate Certificate of Title in which only the name of the surviving joint tenant is listed as the registered proprietor of the land.
8. Transmission Applications
The Legal Personal Representative of a deceased person will be required to deal in any land owned by the deceased. The executor or administrator of an estate often needs to sell land or transfer it from the estate to a beneficiary or beneficiaries. A Transmission Application is required from the executor or administrator of a deceased registered proprietor so that the executor or administrator can be entered on the land title register as the registered proprietor of the estate or interest of the deceased person.
The effect of the application is to place the executor or administrator on the Register as if he or she were a transferee and the absolute proprietor of the estate or interest being dealt with.
9. Deeds of Family Arrangement
A Deed of Family Arrangement is a formal legal document that the beneficiaries of an estate and the Legal Personal Representative of a deceased person can enter into to resolve a dispute between the beneficiaries in relation to the distribution of an estate.
A common example of the use of a Deed of Family Arrangement is where an eligible person not provided for or inadequately provided for in a Will makes a claim under the Family Provision Act 1972 seeking further provision from the estate of a deceased person. If all of the beneficiaries agree to alter the distribution so that the terms of the Will are not strictly followed then such agreement will need to be formalised by way of a Deed of Family Arrangement.
A Deed of Family Arrangement can be used to formally resolve or settle a wide range of estate related disputes. It provides the executor or administrator of the estate with the necessary legal authority to distribute the estate differently to how a Will specifies or to how the Estate must be distributed at law in the case of an intestacy where the deceased person did not leave a Will or where a Will is found to be invalid or ambiguous.
10. Will disputes: Challenging a Will on grounds of Competency or Capacity
Lack of testamentary capacity is the most common challenge to the validity of a Will. For a Will to be valid the testator must be of sound mind, memory and understanding at the time of making the Will. A person has testamentary capacity to make a Will only if they have the mental capacity to understand the nature of their estate and to make decisions about how they want it to be distributed after their death. Conditions such as Alzheimer’s disease or dementia may affect a person’s capacity to make a Will. The issue of capacity is normally decided by the Court based on all of the available evidence relevant to the testator’s mental state at the time of making the Will in dispute.
11. Family Provision Act Claims: Commencing and Defending claims
The Family Provision Act 1972 provides relief to eligible claimants who have not been provided for or have received inadequate provision in the Will of a deceased family member in circumstances where it would be just for the Court to intervene and provide redress for the lack of provision.
For example, in the majority of cases where two persons have been married or in a de facto relationship for a long period of time they would each expect their spouse or de facto partner to make adequate provision for them in their Will. Where the other person dies people sometimes discover that they have not been provided for at all or that the provision in the Will is inadequate.
Prime Law can assist you in making or defending a Family Provision Act claim. We can provide practical and accurate legal advice in relation to the merits of a particular claim and legal representation to either an applicant or defendant in a Family Provision Act matter.