Probate in Western Australia is an order of the Supreme Court confirming that a Will is the deceased’s last valid Will and that the executor named in it has authority to deal with the estate. Until the grant issues, banks, share registries and Landgate will generally not let anyone deal with assets held in the deceased’s sole name.
What a Grant of Probate actually does
A Grant of Probate proves the Will as the deceased’s last Will and it proves the executor’s authority under it.
An executor’s authority comes from the Will rather than from the Court, so in law the executor holds office from the moment of death. What the executor doesn’t have without a grant is anything to show a bank. The grant is the document that lets a third party deal with the executor safely, which is why asset holders ask for it.
Who applies
The executor named in the Will applies. If the Will names more than one executor and they’re all willing to act, they apply together.
If the named executor doesn’t want the job, they can renounce, which takes them out of it entirely, so long as they haven’t already started dealing with the estate.
What the Court needs to see
An application for a grant is made on affidavit, which is a written statement you swear or affirm is true in front of a witness. The Court needs:
- the original Will, not a copy. If the original can’t be found there’s a separate application to prove a copy of the Will. See I can’t find the original Will;
- the original death certificate issued by Births, Deaths and Marriages, not the doctor’s certificate;
- a statement of the deceased’s assets and liabilities as at the date of death, at their date of death value;
- an affidavit by the applying executor; and
- a motion, which is the request to the Court to issue the Grant.
The earliest an application can be made is 14 days after the date of death.
For what the Court does with it and how long it takes, see How long does probate take in Western Australia?
Probate, Letters of Administration and reseals
Probate is one of several grants and which one you need depends on whether the deceased left a Will and whether it appointed an executor.
| Situation | Grant needed |
|---|---|
| Valid Will, executor named and willing to act | Grant of Probate |
| Valid Will, no executor able or willing to act | Letters of Administration with the Will Annexed |
| No valid Will | Letters of Administration |
| Grant already made in another state or in one of His Majesty’s dominions | Reseal of that grant |
| Grant made outside His Majesty’s dominions | Fresh Western Australian grant |
Resealing is where the Court recognises a grant already made in another place so that it works here as well, rather than making you start again.
See What is Letters of Administration? and Resealing a grant from another state or country.
What happens after the grant
The grant is the start of the executor’s work rather than the end of it. After the grant, the executor collects in the assets, pays the debts and the funeral expenses, deals with tax and distributes what’s left according to the Will.
An executor also has various duties, including a duty to file an inventory of the estate and to pass accounts, which means producing a record of everything that came into the estate and everything that went out of it. See What are the duties of an executor?
Frequently asked questions
Is probate always necessary?
No. A grant is needed when an asset holder won’t release or transfer an asset without one, so an estate held entirely in joint names or one in which every account sits below the bank’s threshold may need nothing at all. See Do you need a grant of probate in Western Australia?
Does a Will have to be probated to be valid?
No. A Will is valid or invalid on its own terms and a grant doesn’t make an invalid Will good. What the grant does is confirm to the world that the Court is satisfied the Will is the last valid one.
What if there’s more than one Will?
The Court grants probate of the last valid Will. If a later document is put forward and someone disputes it, that becomes a contested application rather than a routine one. See When is a Will not a Will?
Getting your grant
We prepare and lodge applications for Grants of Probate across Western Australia. Our fixed prices are published, so you know what it costs before we start.
Call the probate team on (08) 9220 4490 or see our Grant of Probate page.
Related: How to apply for probate in Western Australia
This article is general information and not legal advice.
