Supreme Court

FAQ - Probate

1. What is Probate?
2. How much are the Probate fees?
3. Where is the Probate Office located?
4. When is the Probate Office open to the public?
5. What is the postal address?
6. Where can I park my car?
7. As executor, how do I know if Probate is required?
8. How do I apply in person (myself)? When? What documents do I need?
9. How do I apply if there is no will?
10. Are there any duties or taxes payable?
11. How long does Probate take to issue from the date of application?
12. Is the original will returned when the grant is made?
13. What are the meanings of terms used in the application documents?
14. What if I cannot find a current address for a witness?
15. Can I post my application?

1. What is Probate?

   Probate is the process of proving and registering in the Supreme Court the last will of a deceased. To obtain a grant of Probate, the executor named in the will must make application to the Probate Office of the Supreme Court. If the application is approved, the executor is given a grant of probate, which authorises the executor to administer the estate of the deceased according to the terms of the will. This allows the executor to finalise the estate of the deceased and authorises them to perform functions such as arranging payment of debts due to the estate, paying creditors of the estate and disbursing the remaining assets of the deceased as stipulated in the will.
   
   An applicant must provide an address for service within Western Australia.



2. How much are the Probate fees?

The table below contains a summary of fees effective from 5 September 2009:

Item	Description	Fee
1	Filing application for a grant of probate or administration	$189.50
2	Depositing a will of a deceased person	$51.50
3	Depositing a will or instrument under the Wills Act 1970 s.44(1)	$51.50
4(a)	Copy of a will or any other document per page	$1.50
4(b)	Certification fee	$12.50
5(a) 5(b)	Exemplification and settling and sealing	$64
6	Search fee	$26



3. Where is the Probate Office located?

   The Probate Office is located on the 14th Floor, at 111 St Georges Terrace, Perth. It is on the corner of William Street & St Georges Terrace.



4. When is the Probate Office open to the public?

   The Probate Office is open to the public from 9am to 4pm Monday to Friday.



5. What is the postal address?

   The postal address is Level 14, 111 St Georges Terrace, Perth WA 6000.



6. Where can I park my car?

   Parking is available at:
   - Wilson Parking (WA), 1 William St, Perth
   - Wilson Parking (WA), 152-158 St Georges Terrace, Perth
   - City of Perth Council, 7 Mounts Bay Rd, Perth



7. As executor, how do I know if Probate is required?

   If the answer to either of the next two questions is "YES", a grant of probate may be required before you can wind up a deceased estate:
   
   Did the deceased hold (at death) assets (eg bank accounts, shares, real estate) solely in their name?
   Did the deceased hold (at death) real estate as tenants in common with another party?
   
   If the deceased held real estate as joint tenants (eg with a spouse), the title can be transferred by way of survivorship. Forms are available from Landgate for this purpose.
   
   Jointly held bank accounts will normally be transferred to the surviving party on production of a death certificate to the bank by the surviving party. If unsure of how the assets of the deceased were held, an executor should first enquire with the institutions (banks etc) most likely to be holding those assets. If there are assets solely in the name of the deceased, the institution will usually indicate to the executor if or when they require a grant of probate to release those assets.
   
   The executor may apply for probate in person or appoint a legal practitioner or trustee company to act for them.



8. How do I apply in person (myself)? When? What documents do I need?

   If you wish to make an application for simple probate, an interactive online form system is available through the Supreme Court web site. It is easy to use and will help you complete the motion paper, affidavit and statement to make an application for a Grant of Probate.
   
   Probate Online Application
   
   Alternatively, you may purchase a set of application forms from the Citizens Advice Bureau. The Citizens Advice Bureau also sells a guide booklet if required. Read through the forms carefully, paying particular attention to margin notes. Type or NEATLY HAND PRINT the application.
   
   Once completed, you must swear or affirm your application in the presence of an authorised witness* who must witness your signature in the places provided on the documents. An authorised witness within Western Australia is -
   
   
   (a) a Justice of the Peace;
   (b) an experienced lawyer who has held a practice certificate for at least two years and holds a current certificate (unless that lawyer has participated in the proceedings);
   (c) a public notary within the meaning of the Public Notaries Act 1979, or
   (d) any registrar or clerk of a court, and any mining registrar appointed under the Mining Act 1978.
   
   
   The applicant(s) and the witness must sign each page of the affidavit AND also sign the will on a place which is not part of the text, such as the back cover.
   
   Note: For full details on authorised witnesses, see Oaths, Affidavits and Statutory Declarations Act 2005, Sections 6, 9 & 10.
   
   *The Probate Office Supervisor is generally available to witness your documents if necessary, upon filing the application at the Probate Office between 9am and 4pm Monday to Friday.
   
   Application cannot be made until 14 days has elapsed since the date of death. A will may contain time limitations extending this.
   
   The Non-Contentious Probate Rules require an affidavit filed by an executor or administrator with the will annexed to state whether the deceased person married after the time of the execution of the will. This is because a subsequent marriage may revoke a will. Changes to the law in February 2008 provide that a will may also be revoked where the deceased person was divorced after the time of execution of the will. Consequently, the affidavit filed by the executor or administrator should also state whether the deceased person was divorced after the execution of the will. Evidence of divorce, for example a copy of the decree absolute, should also be attached to the affidavit, if it is available.
   
   Include with your application the original will and death certificate (issued by the Registrar General's Office), plus a photocopy of the death certificate (if you want the original returned to you when the grant of probate is issued) plus the lodgement fee.
   
   Applicants should note that fees may not be refunded if the application is "misconceived" i.e. the application is totally incorrect such as when an applicant is not the valid executor named in the will or has not met the requirements of the will. Fees are payable whether the application is successful or not. If another application is required, full fees are payable on any new application.



9. How do I apply if there is no will?

   If a deceased person does not have a will, validation of their estate and benefactors is not done with a grant of probate, but with a similar document known as 'Letters of Administration'. In these circumstances, the Probate Office refers to the Administration Act to assess applications.
   
   Legal advice should be sought in these circumstances - applications for a grant of Letters of Administration are complex and there are no standard forms available for this purpose.



10. Are there any duties or taxes payable?

    There are no probate duties or taxes payable, however, an application fee is payable on lodgement. The table of fees are shown above.



11. How long does Probate take to issue from the date of application?

    Provided there are no problems associated with the application requiring a written response from the applicant, the time taken to process an application varies from approximately three to six weeks.



12. Is the original will returned when the grant is made?

    No. A copy of the will is annexed to the grant of probate but the original must be retained by the Court as a public document in safe custody.



13. What are the meanings of terms used in the application documents?

    Deponent: The Executor swearing the affidavit is deposing to the facts. Therefore the executor, the applicant and the deponent are one and the same in this type of application.
    Movable and immovable property: The distinction can be complex and if there is any doubt you should consult a lawyer. However, "immovable" property includes land and buildings, whilst everything else can usually be regarded as movable.
    Assets or debts inside or outside WA: Most items should be obvious as to which state or territory they lay within, but care should be taken with shares and their location. The location is determined by location of the share register. For example, if the share registry is in Melbourne, it should be shown as outside WA.



14. What if I cannot find a current address for a witness?

    Full names and current residential addresses of the witnesses to the will (and codicil - if there is one) are required. IF the current address cannot be found, all attempts to find it must be stated. This may include searching the phone book, electoral roll, contacting solicitors' offices and/or institutions where the deceased was when the will was made. You should especially note that a legal practitioner who witnessed the will may be shown to be at a current legal practice address. This is the only profession for which this is permitted.



15. Can I post my application?

    The application may be posted. When using the postal system, it is strongly recommended that registered post be used for all applications and that copies of all documents be made.
    
    It is important to note that executors applying "in person" cannot conduct matters through agents, nor can anyone other than the executor be involved in the proving of the will. The only exception to this rule is when a legal practitioner is on the Court record as representing an executor. An executor may appoint a legal practitioner at any stage of the application.