Applying for a Grant of Probate can often feel overwhelming during an already difficult time. A grant is often needed to deal with an estate once someone has passed away, particularly when they have left behind property, money or other significant assets. If you have been appointed as an executor of someone’s estate and never dealt with something like this before, you might be thinking what now?
1. What is a Grant of Probate?
Probate is a legal process of proving the deceased’s Will in the Supreme Court of Western Australia (‘the Court”). The Court checks the validity of the Will and then issues a Grant of Probate. The Court sealed Grant of Probate then essentially becomes “the ticket” for the Executor(s) named in the Will to deal with the deceased person’s estate. An Executors role includes: paying debts, collecting assets, and distributing the estate according to law, and the terms of the Will. I
If there is no Will, a similar document called Letters of Administration is issued instead, and the person handling the estate is then known as an Administrator. To read more about Letters of Administration, please click here.
2. When is probate required?
Probate is typically required if the deceased owned significant assets such as property or substantial bank accounts or shares/investments, in their sole name at the time of their death, or had a refundable accommodation deposit. Probate is not required for any jointly owned assets as they automatically (by way of forms/updates) pass to the survivor. A common myth is that banks will freeze accounts when one of the joint account holders passes away first, but this is simply not the case.
3. Who can apply for probate?
Only the Executor(s) named in the Will can apply for a Grant of Probate. If the named executor is unwilling or unable to act as Executor (for example, if they have died) and there is no substitute Executor named in the Will, then typically one of the beneficiaries named in the Will would apply for Letters of Administration with the Will annexed.
4. How Do I Apply for a Grant of Probate in Western Australia?
You need to submit a Probate application in the Supreme Court of WA. This involves filing several documents which typically includes a Motion, an Affidavit duly sworn by the Executor(s), the original Will (and any Codicils), and the original Death Certificate, together with an unmarked copy of the Death Certificate.
5. What if the deceased was known by multiple names?
Where the deceased had different legal names, this must be addressed in the Probate application. The Executor needs to specify which asset belonged under which name. It is common for people to hold assets in different names, for example, they may have married but not updated their change of name for all their assets.
Addressing this correctly in the Court application ensures that the Grant of Probate is granted in the various names used by the deceased person. As the Grant of Probate is the Executor’s “ticket” to deal with the deceased’s assets, the Executor needs to make sure the Court issues the grant in the correct name(s), otherwise you will not be able to deal with all of the estate assets.
6. How long does the probate process take?
The actual length of time depends on the complexity of the estate, the Court’s file load and whether the Court notes any issues with the Will or with the Death Certificate. The general rule of thumb is that once the probate application is filed with the Court, it usually takes between 4-8 weeks to process. Once a Grant of Probate issues, it is then up to the Executor to administer the estate within a reasonable time.
7. What is the cost to obtain Probate?
The legal costs for obtaining probate varies depending upon the issues which need to be addressed in the application, and the type and extent of the assets and liabilities of the estate. The Court has a current filing fee of $408.
8. What if the Will is invalid, can Probate be contested?
The whole concept of applying for Probate is to prove the validity of the Will but there are some cases where the Will’s validity can be challenged. A Will can be challenged if someone believes there were concerns about the deceased’s capacity, or if the deceased was under duress, or undue influence, or experiencing elder abuse at the time they made their Will.
Other ways a Will can be challenged after probate has issued is if someone makes or threatens to make a Family Provision Act claim or if there are interpretation issues with the Will or if there is a more current Will.
9. What happens after I obtain a Grant of Probate?
Once you obtain a Grant of Probate, it is time to collect in all the estate assets and identify and pay all the estate liabilities and expenses. You must keep the original Grant of Probate somewhere safe and only give out certified copies, as you cannot deal with the deceased’s estate without this document. *Claire – if we have an article about administering estates, can we please link it?**
10. Do I really need a solicitor to apply for probate?
Although it is possible to apply for probate without a solicitor, legal advice is always recommended. Especially if the estate is complicated, or any particular matters need to be addressed in the Court application. Complicated estates include if there are companies, trusts, shares or foreign assets involved. Particular matters which require special consideration in an application for a Grant of Probate include: if an executor has died, or where there may be disputes between beneficiaries, or if there are issues with the condition or execution of the Will.
If an Executor applies for probate themselves, they need to ensure they do so correctly otherwise the Court issues what’s called a Requisition Notice. The Court issues this notice if there are issues concerning the Will or the application itself. A Requisition notice from the Court can result in increased legal fees trying to rectify the error to satisfy the Court that it should issue a grant. If an Executor is at all unsure about what to include in their application for a grant, it is always best to seek legal advice. The costs of legal assistance to prepare and file a probate application can be claimed back from the estate.
Applying for probate doesn’t have to be daunting and with the right preparation and support, one of our estate team members can guide you through it. Whether it is proving the Will, applying for probate, dealing with a disgruntled beneficiary, advocating for your own rights or assisting with the estate administration, we are here to help you.
About the Authors: This article has been co-authored by Ida D’Alonzo & Ruth Livingstone. Ida obtained her Bachelor of Laws at Murdoch University in 2020, after graduating with a Bachelor of Criminology. Ida was admitted as a lawyer in 2022 and has worked in the Wills and Estates area since starting her career. Ruth is Head of Wills & Estates at Lynn & Brown Lawyers. She was admitted as a barrister and solicitor of the Supreme Court of WA in 2003 and since that time has worked at various law firms (including top tier), at the Chamber of Commerce and Industry WA and has run her own business.
