Probate is the process that you need to go through when someone has died and left a Will that names you as their executor. It involves making an application that proves that the will-maker is deceased, their Will is valid, and the person who is making the application is the executor. If all that is proven, the Court will grant that person permission to deal with the deceased’s estate. You can apply for Probate in person (at the Probate office of the Supreme Court of Western Australia), by post or complete your application online. If someone has died without leaving a Will, a different process called Letters of Administration is required.
Frequently Asked Questions
The executor named in the Will makes the application.
An application for Probate can be made from 14 days after the will-maker’s death.
You apply to the Probate office of the Supreme Court of Western Australia, located on the 11th Floor of 28 Barrack Street, Perth.
You can post your application to the Probate Office of the Supreme Court of Western Australia or complete your application online. If you’re posting your application, it’s a good idea to send the documents by registered post.
The executor doesn’t have to make an application for Probate if the deceased:
- Only owned property as a joint tenant with another person;
- Only owned assets jointly with another person (for example bank accounts or shares);
- Had very few personal possessions; or
- Had a vehicle as their only personal property – if this applies, contact the Department of Transport to find out if you can transfer the vehicle licence without applying for Probate.
Note that if the fund in the bank account of the deceased is less than the prescribed amount it can be paid to the deceased person’s spouse or next of kin. See the relevant section – section 139 of the Administration Act 1903 (WA) below. The prescribed amount varies from time to time.
ADMINISTRATION ACT 1903 (WA) – SECT 139
Deposits not exceeding prescribed amount in any financial institution (banks, building societies etc.) may be paid to widow or next of kin without probate or administration.
There are some situations where a Probate application isn’t required even though the deceased has bank accounts or superannuation funds solely in their name. In these cases, it’s advisable for you to get legal advice to find out if Probate is needed.
Do I need to apply for Probate if the deceased had assets in another state but none in Western Australia?
In this case you need to apply for Probate in the other state, not in Western Australia. The deceased must have at least one asset in Western Australia for you to apply for Probate here. If the deceased had assets in Western Australia as well as in another Australian state, you can make the application in Western Australia and include the assets located in the other state in that application. The grant then needs to be resealed in the other state.
Can I get a grant for Probate in my name if the Will maker has appointed another person and me as executors, but the other person doesn’t want to apply for a grant?
Yes, you can apply. The Court can grant Probate to you and the other appointed executor can consent to your application (the other executor can apply in future if there is a need) or renounce their appointment (the other executor may decide not to apply at all and renounce their appointment).
The documents to prepare for your application for Probate are:
- A motion for Probate;
- An affidavit (a written and sworn statement that can be used as evidence in court) from you, the applicant; and
- A statement of the deceased’s assets and liabilities (what they owned and owed).
You may need other documents as well, and it’s a good idea to get legal advice about what those might be.
If I want a lawyer’s assistance with my application for Probate, which documents and information do I need to show them?
The documents to show your lawyer about an application for Probate are:
- The original Will;
- The deceased’s death certificate;
- A statement of the deceased’s assets and liabilities at the date of their death; and
- The full names and current residential addresses of the Will’s witnesses.
If the first executor is dead, and you’re applying for Probate as the substitute executor, you also need the date of the first executor’s death. You should also inform your lawyer if the deceased married, had an annulment, or divorced after making their Will because any of these actions may have revoked the Will.
You must provide the current residential addresses of the witnesses to the Will. If you can’t find a witness’ current address, you should explain in your affidavit the attempts you made to find their addresses. These are the usual searches — white pages, electoral roll and cemetery board. You could also contact the solicitors’ offices or other institutions where the deceased signed the Will. The only exception is if the lawyer is a witness. You can provide the current business address of the lawyer. This is the only exception.
You have to swear that all the information in your affidavit is true and correct. You must sign the documents to be filed before either a Justice of the Peace or an experienced lawyer who has held a practice certificate for at least two years. You and your witness must sign at the bottom of each page of the affidavit and the final page where indicated. Both of you must also sign on the cover of the Will or, if that’s not possible, somewhere on the Will that doesn’t interfere with its content. This called “marking” the Will.
Important note: You have to be very careful in how you deal with the original Will.
- Remove any staples or bindings in the original Will, even if you need to photocopy it;
- Staple, pin, or paper clip anything to the original when preparing your application;
- Write on or make any marking in the original; or
- Fold the original.
The documents to file with your standard application for Probate are:
- A motion for Probate;
- An affidavit from you, the applicant;
- A statement of the deceased’s assets and liabilities;
- The original Will;
- The deceased’s death certificate – the original and a copy; and
- The filing fee.
For simple Probate applications, we offer a Probate kit that contains an easy to follow guide to completing the forms. The kit costs $10 and is available from all Citizens Advice Bureau branches and can be purchased from our online shop.
If you can’t get to a branch, you can send us a cheque or money order (made payable to Citizens Advice Bureau) for $12.20 to Citizens Advice Bureau Probate Kits, Level 1, 25 Barrack Street, Perth, WA 6000. Please make sure you enclose your name and address so that we can post a kit to you by return.