Probate & Reseal of Probate in WA


Fixed fee for Probate application of $649 (inc GST) + Court filing fee

Our fixed fee for Probate includes:

 Consultation with a lawyer;

 Review of the Deceased's Will for validity;

 Preparation of the Probate application;

 Witnessing the executor's affidavit;

 Court lodgment; and

 Providing the Grant of Probate to you.

What additional fees may apply for different services?

Separate fees will apply for different services such as:

  1. when one or more probate caveats, citations or subpoenas are required to be issued;
  2. when a Langate search is required to identify property of the deceased;
  3. when documents or information are required to be obtained;
  4. when the Applicant requires us to complete any form or document which the Applicant requests we complete;
  5. to perform a search of the Probate registry for previous applications or Grants;
  6. to deal with any issues which may arise from the Application in order to comply with the Court's rules (eg. locating missing beneficiaries and addressing errors on a death certificate) or when a requisition is issued by the Court;
  7. when a deed of family arrangement is required by the parties;
  8. when advice is required by the Applicant or Executor; and
  9. when we act for the Applicant in a dispute.

Do I need to apply for probate in WA?

If a person dies leaving a valid Will and some assets in WA, you most likely will need to apply for a Grant of Probate in WA. If you are unsure if you need Probate, give us a call.

You may need to obtain a grant of Probate because some people or organisations holding assets of the deceased person will not release them without sighting a Grant of Probate.

The most common types of property where a Grant of Probate will be required are:

  1. accommodation bonds;
  2. bank accounts solely in the name of the deceased;
  3. superannuation and death benefits from life insurance;
  4. land; and
  5. other property owned solely by the deceased or as tenants in common (eg. shares, boats, firearms).

What is a grant of Probate?

Probate is the process of proving and registering the last will and testament of a deceased person. Probate applications are generally lodged by the Executor or Executrix named in the deceased’s Will in the Supreme Court of WA.

The Supreme Court, once satisfied that the application has complied with the Non-contentious Probate Rules 1967 (WA) and that the deceased’s Will complies with formalities pursuant to the Wills Act 1970 (WA), the Court will issue a legal document known as a grant of Probate which is official recognition that the deceased’s will is legally valid. Once the grant of Probate is obtained, the Executor or Executrix of the deceased estate can deal with the assets and liabilities of the deceased person.

Do I have to use the lawyer who prepared the Will to obtain a grant of Probate?

No. If a lawyer is holding the deceased’s Will in safe custody, another lawyer can obtain the Will.

What is the process to obtain a grant of Probate?

The process for obtaining a grant of Probate in WA involves the following 6 steps:

  1. obtaining the original death certificate;
  2. obtaining the original Will;
  3. determining the location and value of the assets and liabilities of the estate (and there must be some assets in WA);
  4. preparing the Court documents for the application;
  5. lodging the application with the Supreme Court; and
  6. responding to any requisition notices from the Court.

In WA, steps 1-3 are all matters which should be completed before contemplating the preparation of the WA Supreme Court documents for the grant of Probate application. Provided that the deceased person left some assets in WA, then the WA Supreme Court may grant Probate in relation to the Will.

Steps 4, 5 and 6 should be undertaken by a lawyer with experience in Probate applications to ensure that the application is made in compliance with the requirements of the Non-contentious Probate Rules 1967, the Rules of the Supreme Court 1971 and the general practice of the Court.

Could the Will be invalid?

In WA, there may be many reasons why a Will may be invalid, for example:

  1. the person did not have testamentary capacity (eg. they suffered from dementia) and there is medical and/or other supporting evidence;
  2. the Will was not signed, or there were not 2 witnesses to the signing by the testator (although the Will could be valid as an informal Will under the Wills Act 1970); or
  3. the Will was automatically revoked by a subsequent marriage or divorce.

What property can be disposed of under a valid Will?

In WA, a deceased estate includes all the property of a deceased person under the Wills Act 1970 and may include (for example):

  1. land solely owned or owned tenants in common with another person;
  2. an interest in land (eg. a lease); and
  3. personal property (eg. bank account, car, shares, life insurance, patent or money).

The Supreme Court of Western Australia cannot make a grant of Probate unless the deceased person left some property in WA. If the deceased person has any property outside of WA but in Australia, you may be required to apply to reseal the original grant of Probate (or Letters of Administration) in each State or Territory of Australia where property is located.

Can a Deed of Family Arrangement be used to vary the distribution under the Will?

Yes. A Deed of Family Arrangement can be executed by the beneficiaries to vary the rights and interests of one or more of the beneficiaries. If the changes concern a different entitlement to land, there are duty (formally stamp duty) implications in WA. You can read greater details about this issue in our publication titled "Can the beneficiaries amend the terms of a deceased's Will?"

What if the Will is damaged?

Under no circumstances should you attach a document to a Will. If a Will shows any sign of damage or tampering the matter will need to be explained in the affidavit filed with the application for the grant of Probate. In certain situations, the Supreme Court may require an investigation into the matter.

What if I cannot find the original Will?

If you have made an extensive search for a Will and not found one, you may apply for a grant of Letters of Administration. If you only have a photocopy of the Will, you may be able to obtain a grant of Probate. A grant of Letters of Administration can be revoked if the original Will is later found.

Can a Grant of Probate be made if no executor has been named in a Will?

Yes. When a deceased person has made a will but, they did not appoint a person to act as the executor, a minor was appointed, the executor is not willing or unable to act, or the executor is deceased, an application should be made to the Supreme Court of Western Australia for a grant of Letters of Administration with the will annexed.

Whether a person resident outside of WA can obtain a grant of Letters of Administration will depend upon whether (i) that person has an attorney who can be the administrator, or (ii) whether the next of kin will consent to the appointment and there are adequate securities within the jurisdiction to protect any share of the estate that does not pass to the applicant. As an exception, an executor may be appointed provided that the testator appoints people to nominate executors under the terms of the will. Any person interested in the estate or any creditor may apply for the grant of Letters of Administration with the will annexed. The Supreme Court may place such limitations as it sees fit on the administrator.

What happens if the deceased estate is bankrupt?

If the deceased person's debts exceed their assets, the estate will be bankrupt.

Bankrupt estates can raise complex legal issues. If you are unsure if you should apply for Probate if the estate is bankrupt, give us a call.

What is a reseal of Probate?

Where the deceased died leaving assets situated in another State or Commonwealth country, a Grant of Probate or Letters of Administration may need to be issued by a Court of that jurisdiction.

If you have already obtained the Grant of Probate (or Letters of Administration) in another State or Country, then you will need to apply for the Grant of Probate to be “resealed”.

Do I need to reseal a grant of probate in WA?

If the deceased died leaving assets in more than one jurisdiction including WA, which is typically the case where the deceased had a share portfolio, then you will most likely need to have the Grant of Probate resealed.

If you are not sure if you need a Grant of Probate to be resealed, please contact us.

Glossary of terms related to probate and deceased estates

See our glossary of probate and deceased estate terms here.

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