Lyla Lindsey
In Western Australia, probate is typically required when a person dies owning assets solely in their name, such as property or substantial financial holdings. Probate is not necessary for jointly owned assets, as these are automatically transferred to the surviving owner. The process involves making an application to prove that the will-maker is deceased, their will is valid, and the person making the application is the executor. If the deceased did not leave a will, a different process called Letters of Administration is required. The Supreme Court of Western Australia will only issue a grant of probate if there are assets located within Western Australia to be dealt with. The cost of obtaining probate varies depending on the size of the estate and the complexity of the assets.
| Characteristics | Values |
|---|---|
| Probate required | When a person dies owning significant assets solely in their name, such as real property or substantial financial holdings |
| Probate not required | When assets are jointly owned, as they automatically pass to the surviving owner. This includes jointly owned bank accounts, shares, and property owned as a joint tenant. |
| Application process | The executor of the will must file an application for a grant of probate within 6 months of the deceased's date of death. Applications can be made in person, by post, or online. |
| Required documents | Original will, original death certificate, original codicil (if applicable), original signed consents or renunciations, motion, affidavit, and statement of assets and liabilities. |
| Costs | Court filing fees ($408 as of 2024), legal fees, and other expenses such as the cost of gathering documents and valuing property or assets. |
| Timeframe | Approximately 2-8 weeks, depending on the size and complexity of the estate, completeness of documentation, and whether there are any disputes. |
| Contesting probate | Probate can be contested if someone believes the will is invalid or if there are concerns about the management of the estate, including undue influence, lack of capacity, or improper execution of the will. |
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What You'll Learn
When is probate required in Western Australia?
In Western Australia, probate is typically required when a person dies owning significant assets solely in their name, such as real property or substantial financial holdings. Probate is not necessary for jointly owned assets as these automatically pass to the surviving owner.
Probate is the process that one needs to go through when someone has died and left a will that names them as the 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 of this is proven, the Probate Office of the Supreme Court of Western Australia will grant that person permission to deal with the deceased’s estate.
The application for probate is made by filing a motion, supporting affidavit, and statement of assets and liabilities. The following documents are required: the original will, the original death certificate, and original signed consents or renunciations. The application can be made in person, by post, or online.
The cost of obtaining probate in Western Australia varies depending on the size of the deceased’s estate and the complexity of their assets. Costs typically include court filing fees, legal fees, and other expenses, such as the cost of gathering documents and valuing property or assets.
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How to apply for probate in Western Australia
Applying for probate in Western Australia involves several steps and considerations. Here is a guide on how to navigate the process:
Understanding Probate in Western Australia
Probate in Western Australia is governed by the Administration Act 1903. It is a certificate granted by the Probate Office of the Supreme Court of Western Australia. Probate validates the deceased's will, authorising an executor to administer their estate. The executor is responsible for managing and disposing of assets according to the will's provisions. They must value the estate, notify beneficiaries, and pay debts and expenses before distributing the remaining assets.
Probate is generally required when there are assets solely in the deceased's name. Institutions holding these assets will usually inform you of their requirements for releasing them. If the deceased held joint assets, such as a joint bank account or real estate with a spouse or partner, these can typically be transferred to the surviving party without probate.
Preparing for the Application
The application process involves filing a motion, affidavit, and statement of assets and liabilities. You can engage a lawyer to prepare and file these documents, or you can use the online Probate Wizard to guide you through the process yourself. The following documents are typically required:
- The original will
- The original death certificate
- An original codicil (if applicable)
- Original signed consents or renunciations
- Your full legal name and residential address
Submitting the Application
Submit your application to the Probate Office of the Supreme Court of Western Australia. There is a fee for filing the application. The Probate Office will typically issue grants of probate within two to three weeks for straightforward applications. More complex cases may take longer. There is no requirement to publish a notice before applying, but the Probate Office must receive an inventory and valuation of the deceased's assets and liabilities at the time of death.
After the Application
Once probate is granted, the executor can collect the assets. Funeral expenses, testamentary expenses, and administration expenses are prioritised before paying off other debts. If the estate includes property with outstanding mortgages, charges, or liens, these debts must be settled before distributing the property. Finally, the executor can distribute the remaining assets according to the will's provisions.
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Probate costs in Western Australia
Probate in Western Australia is governed by the Administration Act 1903. A grant of probate can be made when a person has died leaving behind a valid will and has nominated a person to act as the executor of that will. Probate is a certificate granted by the Probate Office of the Supreme Court of Western Australia. It confirms that the deceased's will has been proved as valid and registered, and that an executor has been authorised to administer the deceased's estate.
There are two main costs associated with obtaining a grant of probate in Western Australia. The first is the Probate application filing fee, which is payable to the Supreme Court of Western Australia via bank cheque when the application is lodged. This is a flat fee of $408, regardless of the value of the estate. The second cost is the fee you pay to the company or individual who prepares the paperwork that is submitted to the Court. Solicitors and law firms generally charge between $2,000 and $15,000 for this service, although some firms offer a flat fee of $900.
Other costs that may be incurred in the application for probate include costs associated with obtaining asset information, including asset values, and costs associated with obtaining the required death certificate, and possibly additional certificate evidence depending on the type of application.
It is important to note that probate can be contested if someone believes the will is invalid or if there are concerns about how the estate is being managed. Common grounds for contestation include claims of undue influence, lack of capacity, or improper execution of the will. While it is possible to apply for probate without a lawyer, legal advice is often recommended, especially for larger or more complicated estates.
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Probate disputes and complications
In Western Australia, probate is governed by the Administration Act 1903. A grant of probate can be made when a person dies leaving behind a valid will and has nominated an executor to manage their estate. The executor must value the estate, keep a record of all valuations, and notify all beneficiaries of their entitlements under the will. They must also pay the debts of the estate before distributing any assets. If the will includes property with a mortgage or other money owing on it, the estate is primarily liable for discharging these debts before any distribution of the property can occur.
Probate can be contested if someone believes the will is invalid or if there are concerns about how the estate is being managed. Common grounds for contesting a will include claims of undue influence, lack of capacity, or improper execution of the will. If an executor is not performing their duties or is acting improperly, beneficiaries can apply to the court to have them removed or seek other remedies.
To resolve probate disputes, it is recommended to seek legal advice early in the process to gain guidance and clarity on complex legal issues. Formalising agreements through legally binding documents can prevent future disputes and ensure all parties are committed to the resolution. Mediation services and community legal centres offer free or low-cost assistance in dealing with inheritance disputes and can help facilitate amicable resolutions without resorting to court proceedings. However, in cases where disputes cannot be resolved through mediation, court intervention may be necessary for binding decisions to be made by the Supreme Court of Western Australia.
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What happens after probate is granted?
In Western Australia, probate is a certificate granted by the Probate Office of the Supreme Court. It confirms that the deceased's will has been validated and registered, and that an executor has been authorised to administer their estate. Probate may be granted in solemn form or common form. Solemn form is granted when the validity of the will is disputed, while common form is granted when there is no dispute.
So, what happens after probate is granted? Once an executor obtains a grant of probate, they must collect the assets before any payments from the estate can be made. Funeral, testamentary, and administration expenses are prioritised over all other payments. Once these matters are finalised, the executor may pay off the debts of the estate. If there is property involved that has a mortgage, charge, lien, or other money owing on it, the estate is primarily liable for discharging these debts before any distribution of the property can occur. When all debts have been paid, the executor can distribute the remaining assets to the beneficiaries according to the will. The executor must also notify all beneficiaries named in the will about the death and their entitled benefits. Additionally, the executor may need to complete and lodge income tax returns and obtain clearance from the Australian Tax Office.
If the deceased owned real estate as a joint tenant with another person, such as a spouse or partner, the title can usually be transferred to the surviving party without a grant of probate. Similarly, jointly held bank accounts will typically be transferred to the surviving party upon presentation of a death certificate to the bank.
It is important to note that probate can be contested if someone believes the will is invalid or if there are concerns about how the estate is being managed. Common grounds for contesting probate include undue influence, lack of capacity, or improper execution of the will. If the executor is not fulfilling their duties properly, beneficiaries can apply to the court for their removal or seek other remedies. While it is possible to apply for probate without legal representation, it is generally recommended, especially for larger or more complex estates.
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Frequently asked questions
Probate is the process of proving a will's validity and registering it with the Probate Office of the Supreme Court of Western Australia. It grants the executor of the will the authority to administer the deceased's estate.
Probate is typically required in Western Australia when a person dies owning significant assets solely in their name, such as real property or substantial financial holdings. Probate is not required for jointly owned assets, as they automatically pass to the surviving owner.
You can apply for probate in Western Australia by filing a motion, supporting affidavit, and statement of assets and liabilities. You can engage a lawyer to prepare and file these documents, or you can do it yourself using the online Probate wizard. Applications should be submitted to the Probate Office of the Supreme Court of Western Australia, either in person or by post.
