Supreme Court

FAQ - Probate

1. What happens where the deceased person has left a will that appoints an executor?
2. What happens if the deceased person has left a will which does not name an executor or the executor named in the will is unable or unwilling to apply for a grant of probate?
3. What happens if a deceased person did not leave a valid will?
4. I am named as an executor in a will. How do I know if a grant of Probate is required?
5. Can I apply for a grant of probate without seeing a lawyer? What documents do I need?
6. How do I swear/affirm my affidavit?
7. How does a person who does not speak English make an affidavit?
8. What must I include in the statement of assets and liabilities?
9. What if the deceased did not leave any property in Western Australia?
10. Does it matter if the deceased married or divorced after signing the will?
11. What should I do if I cannot find the original will?
12. What if the deceased used a name other than (or as well as) his or her real name?
13. Can I obtain a grant of probate in my name only if the will appoints me and another person as executors but the other person does not want to apply for a grant?
14. What should I do if I cannot find a current address for a witness to the will?
15. Can I apply for a grant of Letters of Administration with the Will Annexed or a Grant of Letters of Administration without the assistance of a lawyer?
16. What should I do before lodging my application for a grant of Probate?
17. Where do I lodge my application?
18. Are fees payable to the Court?
19. How do I pay the fees?
20. Are there any duties or taxes payable?
21. When is the Probate office open to the public?
22. Where can I park my car when visiting the Probate office?
23. Can I post my application to the Probate office?
24. What is the Probate office’s postal address?
25. Can the staff at the Probate office assist me with my application or give me legal advice?
26. How long does it take the Court to process applications for grants of Probate, Letters of Administration with the Will Annexed and Letters of Administration?
27. Will the Probate office return the original will to me when the grant is made?
28. What happens if there is a problem with my application?
29. How do I prepare an affidavit?
30. Can I get a refund of the fees that I have paid if there is something wrong with my application?
31. Where can I get legal assistance or held to find a lawyer??
32. What are some other useful contacts for me?

1. What happens where the deceased person has left a will that appoints an executor?

   Where the deceased has left a will that appoints an executor the executor may apply to the Supreme Court for a grant of Probate. 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 selling assets of the estate, paying creditors and paying money to the beneficiaries named in the will.



2. What happens if the deceased person has left a will which does not name an executor or the executor named in the will is unable or unwilling to apply for a grant of probate?

   Where the deceased’s will does not name an executor or, for some reason, the only executor named in the will is unable or unwilling to apply for a grant of Probate a beneficiary named in a will or some other person may be able to apply to the Court for a grant of Letters of Administration with the Will Annexed. These applications are more complex than applications for a grant of Probate and applicants should see a lawyer. There are no standard forms available for these applications.



3. What happens if a deceased person did not leave a valid will?

   Where the deceased did not leave a valid will a family member who is entitled to receive a benefit from the deceased’s estate may apply to the Court for a grant of Letters of Administration. These applications are also more complex than applications for a grant of Probate and applicants should see a lawyer. There are no standard forms available for these applications.



4. I am named as an executor in a will. How do I know if a grant of Probate is required?

   You may require a grant of Probate as executor if the answer to either of the following two questions is YES:
   
   
   • Did the deceased have assets at the date of death such as bank accounts, shares or real estate solely in his or her name?
   • Did the deceased own real estate at the date of death as tenants in common with another party?
   
   You may not require a grant of probate if:
   • The deceased owned real estate at the date of death as a joint tenant with another person such as a spouse or partner. In this case the title can be transferred to the surviving party without a grant of probate being required. Forms are available from Landgate for this purpose.
   • The deceased’s bank account was jointly held with another person such as a spouse or partner. Such bank accounts will normally be transferred to the surviving party on production of a death certificate to the bank by the surviving party.
   • The deceased’s only other assets were personal possessions.
   
   If you are unsure of how the deceased’s assets were held, you should first enquire with those 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 advise you whether they require a grant of probate to release those assets.
   
   You should see a lawyer if you are still unsure of how the deceased’s assets were held and as to whether you require a grant of probate.



5. Can I apply for a grant of probate without seeing a lawyer? What documents do I need?

   You may instruct a lawyer to prepare and file an application for a grant of Probate on your behalf (or to act for you at any stage of the proceedings). Alternatively, you may do it yourself. If you wish to do it yourself then an interactive online form system is available through the Supreme Court web site. It is easy to use and will help you complete the required application, an affidavit in support of the application and a statement of assets and liabilities to be attached to your affidavit.
   
   Probate Online Application
   
   

   You should obtain legal assistance if you find that the probate online application is not suitable for your application.

   Alternatively, you may purchase a set of application forms from the Citizens Advice Bureau. Read through the forms carefully, paying particular attention to margin notes. You must type or NEATLY HAND PRINT the application. You should obtain legal assistance if you experience problems completing the application forms.

   • Do not staple, pin or paperclip anything to the will when preparing your application.
   • Do not remove staples or bindings to photocopy the will.



6. How do I swear/affirm my affidavit?

   Once completed, you must swear or affirm your affidavit in the presence of an authorised witness who must witness your signature in the places provided on the affidavit. Authorised witnesses within Western Australia include:
   
   
   (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); or
   (c) a public notary within the meaning of the Public Notaries Act 1979.
   Full details of who are authorised witnesses are contained in sections 6, 9 & 10 of the Oaths, Affidavits and Statutory Declarations Act 2005.
   
   You and the authorised witness must sign your usual signatures at the bottom of each page of the affidavit and where indicated on the final page. You and the authorised witness must also sign your usual signatures on the cover of the will or, if that is not possible, somewhere on the will that does not interfere with the text of the will. This is called marking the will.
   
   An affidavit is not the same as a statutory declaration. A statutory declaration will not be accepted by the Probate office.
   
   



7. How does a person who does not speak English make an affidavit?

   Section 14 of the Oaths, Affirmations and Statutory Declarations Act 2005 sets out how a person must make an affidavit if they are not sufficiently conversant in English to make an affidavit in English. The following steps must be taken:
   • The person must swear an affidavit written in his or her own language.
   • The affidavit must then be translated into written English by a suitably qualified translator.
   • The translator must then swear an affidavit that sets out his or her qualifications as a translator and that the English translation is accurate.The English translation must be attached to the translator’s affidavit.
   • Both affidavits must then be filed at the Court.



8. What must I include in the statement of assets and liabilities?

   You must include in the statement of assets and liabilities attached to your affidavit details of the deceased’s assets and liabilities at the date of death. Below is an example of how standard assets and liabilities should be described in a statement:
   
   

   ---

   Statement of Assets and Liabilities

   Movable Property (see note 1 below)	Outside Western Australia (see note 2 below)	Inside Western Australia
   Bank of XYZ Savings Account No. 123 678 (see note 3 below)		$45,556.66
   Challenge Bank – account no. 890 123		$23,667.44
   2008 Nissan Pulsar regn no 1ABC 333 (see note 4 below)		$7,500.00
   3000 shares in Smith Pty Ltd	$3500
   Personal possessions		$2000.00
   Total	$3500	$78724.10
   Immovable property in Western Australia
   123 Smith Street, Floreat		$750,000.00
   Unit 18/A Jones Street, Mount Lawley		$350,000.00
   Total		$1,100,000.00
   GROSS VALUE OF ASSETS IN WESTERN AUSTRALIA		$1,178,724.10
   Debts	Outside Western Australia	Inside Western Australia
   Mortgage Challenge Bank No.2345-5432		$47,555.88
   111 Pharmacy		$44.99
   XYZ Credit Card	$33.66
   Smith Funeral Directors		$7,300.00
   Total	$33.66	$54,900.87
   NET VALUE OF ASSETS IN WESTERN AUSTRALIA		$1,123,823.23

   
   
   • Note 1 – Movable and immovable property: The distinction between movable and immovable property 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.
   • Note 2 - Assets or debts inside or outside WA: It should be obvious whether particular items are located in Western Australia or elsewhere. Care should be taken with shares and their location. Their location is determined by location of the share register. For example, if the share registry is in Melbourne, they should be shown as being located outside WA.
   • Note 3 - Bank accounts: You must list each bank account held by the deceased, setting out the name of the bank at which the account was held, the account number and the balance of the account at the date of the deceased’s death.
   • Note 4 - Motor vehicles: You must set out the year, make and registration number of the vehicle.



9. What if the deceased did not leave any property in Western Australia?

   The Court cannot make a grant of Probate, Letters of Administration with the Will Annexed or Letters of Administration if the deceased did not leave any property in Western Australia.



10. Does it matter if the deceased married or divorced after signing the will?

    Yes, it does matter. The will may have been revoked if the deceased married, divorced or obtained a decree of nullity of his or her marriage after signing the will. The Court’s online application form and the up-to-date application forms available from the Citizens Advice Bureau deal with these issues.
    
    You will need to see a lawyer before making your application if the deceased married, divorced or obtained a decree of nullity of his or her marriage after signing the will.



11. What should I do if I cannot find the original will?

    You may be able to obtain a grant of Probate or a grant of Letters of Administration with the Will Annexed even if you cannot find the original will and only have a photocopy of it. You should see a lawyer before making your application



12. What if the deceased used a name other than (or as well as) his or her real name?

    You must refer to the deceased in your application by his or her true full name. The fact that the deceased had a nickname or that some other name appears on the death certificate along with the deceased’s true name is not a good reason for referring to both names in your application or in the grant.
    
    Where the deceased owned property in his or her true name and also in some other name (or just in that other name) then the grant issued by the Court will refer to the deceased by both names. You must set out in your application and affidavit the deceased’s true full name and the other name that he or she used. You must also identify in your affidavit the property held in that other name.
    
    You must also set out in your affidavit any other reason why you would like the grant to refer to the deceased by his or her true name and some other name.



13. Can I obtain a grant of probate in my name only if the will appoints me and another person as executors but the other person does not want to apply for a grant?

    Yes – where two or more executors are named in the will the Court may make a grant of Probate in favour of some but not all of the named executors. The Court will reserve leave to those other executors to apply for a grant in the future. You should make it clear in your affidavit that you seek such a grant.



14. What should I do if I cannot find a current address for a witness to the will?

    You must include in your affidavit in support of your application for a grant of Probate or for Letters of Administration with the Will Annexed the full names and current residential addresses of the witnesses to the will (and codicil if there is one). If you cannot find the current address of a witness then you must set out in your affidavit the attempts made by you to find the address. This may include searching the phone book and electoral roll and contacting solicitors' offices or institutions where the deceased signed the will. The address of a legal practitioner who witnessed the will may be shown as his or her current legal practice address. This is the only profession for which this is permitted - in all other cases the witnesses residential address must be given.



15. Can I apply for a grant of Letters of Administration with the Will Annexed or a Grant of Letters of Administration without the assistance of a lawyer?

    Yes – though as indicated above, these are more complex applications for which there are no standard forms and no online application form. You should see a lawyer.



16. What should I do before lodging my application for a grant of Probate?

    Please check your application and affidavit very carefully before lodging them at the Probate office. Even minor errors in your application and your affidavit may result in delays in the Court processing your application.
    
    If you cannot answer yes to following questions there is likely to be a problem with your application.
    
    
    • Do you have the deceased’s original will (and not just a photocopy)?
    • Do you have the deceased’s death certificate (and not just a photocopy)?
    • Have you stated in your application and affidavit your full name and current residential address? (Business addresses and PO Box addresses are not acceptable.)
    • Have you stated in your application and affidavit the deceased’s true full name and his or her last residential address?
    • Have you stated in your affidavit :
    • the correct date of the deceased’s death?
    • the correct date of the will?
    • the correct date of the deceased’s birth?
    • If you are entitled to apply for a grant as executor because the first executor named in the will died before the deceased, have you stated in your affidavit the date of death of the first executor?
    • Have you stated in your affidavit whether or not there is a codicil to the deceased’s will?
    • If there is a codicil, have you stated its date in your affidavit?
    • Have you stated in your affidavit whether the deceased was married or divorced at the date the will was signed?
    • Have you stated in your affidavit the full names and current residential addresses of the witnesses to the will (and to any codicil)?
    • Have you described fully the deceased’s assets and liabilities in the statement of assets and liabilities and in particular -
    • have you included the make and registration number of any car owned by the deceased?
    • in relation to any bank accounts, have you included the name of the bank, the account number and the balance in the account at the date of death?
    • Have you sworn your affidavit before someone qualified to take your oath?
    • Have you and the person before whom you have sworn your affidavit signed your names on the cover of the will or, if that is not possible, somewhere else on the will that does not interfere with the will’s text?

    

17. Where do I lodge my application?

    You must lodge your application at the Court’s Probate office which is located on the 14th Floor, 111 St Georges Terrace, Perth. It is on the corner of William Street and St Georges Terrace.
    
    You must lodge the following in a standard application for a grant of Probate:
    
    • your application
    • your affidavit in support of your application
    • the original will
    • the original 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)
    • the lodgement fee.



18. Are fees payable to the Court?

    The table below contains a summary of fees effective from 20 December 2011:

    Item	Description	Fee
    1	Filing application for a grant of probate or administration	$189.50
    2	Depositing a will of a deceased person	$54
    3	Depositing a will or instrument under the Wills Act 1970 s.44(1)	$54
    4(a)	Copy of a will or any other document per page	$1.50
    4(b)	Certification fee	$13.15
    5(a) 5(b)	Exemplification of a grant For settling and sealing a citation or a subpoena	$67.50
    6	Search fee	$27.30



19. How do I pay the fees?

    Payment may be made by cash, cheque, Visa, Mastercard or eftpos. Cheques should be made payable to Probate Office of Western Australia.



20. Are there any duties or taxes payable?

    There are no probate duties. You should obtain legal or accounting advice as to any tax issues that may arise following the death of the deceased.



21. When is the Probate office open to the public?

    The Probate Office is open to the public from 9am to 4pm Monday to Friday (except on public holidays).



22. Where can I park my car when visiting the Probate office?

    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



23. Can I post my application to the Probate office?

    Yes - you may post your application and supporting documents to the Probate Office together with the filing fee. It is strongly recommended that you use registered post. You should make and retain a photocopy of all documents sent to the Probate Office and in particular, of original will or codicil, or any document purporting to be an original will or codicil.



24. What is the Probate office’s postal address?

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



25. Can the staff at the Probate office assist me with my application or give me legal advice?

    No – Probate office staff cannot assist you with your application, complete forms, examine documents prior to lodging, recommend a lawyer or give you legal advice. You should obtain legal assistance if you have any questions about your application after looking at these FAQs.
    
    The Probate Office cannot give advice on related matters such as contesting a will, the failure of an executor or administrator to pay monies to beneficiaries or the failure of an executor or administrator to tell you what is happening in relation to an application or an estate. You should see a lawyer about such matters.



26. How long does it take the Court to process applications for grants of Probate, Letters of Administration with the Will Annexed and Letters of Administration?

    It takes the Court approximately three to six weeks to process applications provided there are no problems associated with them. You may advise the Probate Office in writing when filing your application if there is any particular reason why you would like your application to be dealt with urgently



27. Will the Probate office return the original will to me when the grant is made?

    No – the Court will attach a photocopy of the will to the grant of Probate or Letters of Administration with the Will Annexed. The Court retains the original as a public document in safe custody.



28. What happens if there is a problem with my application?

    A Registrar of the Court will advise you in writing of any problems with your application and tell you what you must do to remedy those problems. The document that you receive from the Court is called a requisition. Please bear the following matters in mind if you receive a requisition:
    
    
    • The Court will not process your application until you have answered the requisition satisfactorily.
    • You must answer the requisition by setting out the required information in an affidavit unless the requisition says that you may answer it by letter. You cannot answer a requisition by way of a statutory declaration. Question 29 of these FAQs shows the format for affidavits.
    • Any further affidavit that you file must deal with the subject matter of the requisition only. Do not repeat previous information provided in a previous affidavit.
    • You cannot speak to the Registrar about the requisition.
    • The Probate Office staff cannot give you advice as to the meaning of a requisition, tell you how to answer it or provide you with any legal advice. You should see a lawyer if you do not understand the requisition or know how to answer it.
    • The requisition may suggest that you obtain legal advice. If it does, you should not ignore that. The Registrar will have had a particular reason in each case to suggest it.



29. How do I prepare an affidavit?

    The format of the affidavit that you should use when answering a requisition can be found on the following link. This link will open a Word document. You may fill in the blank spaces in the document by clicking on the grey areas and typing in the relevant information.
    
    The Court may reject an affidavit if it is not in the correct form so please comply with the following:
    • An affidavit must be typed (and not hand-written) on white A4 paper using at least 12 point font and black ink.
    • Matters set out in an affidavit must appear in numbered paragraphs.
    • Each page of an affidavit must be numbered and the pages stapled at the top left corner.
    Question 6 of these FAQs explains how an affidavit is sworn or affirmed.



30. Can I get a refund of the fees that I have paid if there is something wrong with my application?

    The Court may refuse your application if it is misconceived because, for example, you are not the executor named in the will or you have not met the requirements of the will. The fee you paid when you lodged the application is unlikely to be refunded in such a case. You will be required to pay a fresh fee if it is necessary for you or someone else to make a further application.



31. Where can I get legal assistance or held to find a lawyer?

    • The Law Society of WA referral scheme - Tel:9322 7877 - www.lawsocietywa.asn.au
    • Community Law Centres – www.communitylaw.net



32. What are some other useful contacts for me?

    • Non-contentious Probate Rules 1967
    • Office of Births Deaths and Marriages - www.bdm.dotag.wa.gov.au
    • Citizens Advice Bureau - www.cabwa.com.au
    • Landgate - www.landgate.wa.gov.au
    • For legal assistance or help to find a lawyer - www.lawsocietywa.asn.au
    • Community Legal Centres - www.communitylaw.net
    • Public Trustee - www.publictrustee.wa.gov.au