Probate Registry (WA)
The Probate Registry of the Supreme Court of Western Australia has jurisdiction over the administration of deceased estates for local residents and those who own real property in that state. A personal representative must apply to the court for one of the different types of probate grants, depending on the testamentary circumstances of the deceased. These grants legally authorise the appointment of a personal representative to act as either executor or administrator of the deceased estate. This article examines the role of the Probate Registry in WA, with particular focus on the grant application process.
What Is Probate?
Probate is the process by which a will is verified as valid, current and reflective of the wishes of the deceased. In WA, probate is granted either in solemn or common form: solemn form applies when there is some dispute over the validity of the will and there are ongoing proceedings challenging the will, and common form is warranted when there is no dispute and there is no need for a hearing or witness evidence in order to prove the will is valid.
There is no obligation in WA for the personal representative to publish a Notice of Intention to Apply, but they must wait 14 days after the death of the deceased before making an application. The applicant must also submit an inventory of the deceased’s assets and liabilities to the Probate Registry.
What Role Does The Probate Registry Play In WA?
In WA, the Probate Registry is also known as the Probate Court, which is an administrative division of the Supreme Court that assesses probate applications in accordance with the Administration Act 1903.
In WA there is no online record of the grants that have been issued by the registry as there is in other jurisdictions in Australia.
When Is It Necessary To Apply?
An eligible person must apply to the Probate Registry in the event that the deceased solely owned certain classes of assets including real estate, shares or bank accounts. Financial institutions, share registries and Landgate often need to see a Grant before they will engage with someone about the deceased estate.
When Is It Not Necessary To Apply To The Probate Registry?
In WA, a Grant of Probate may not be required if, at the time of death, the deceased only owned personal possessions, a car or motorbike, and real estate and bank accounts that were jointly held with another party (as the surviving co-owner will automatically gain sole possession). It is recommended that the personal representative checks with the asset holders, companies and funds directly to ascertain whether a grant is necessary in the specific case.
What Grants Do The Probate Registry Issue In WA?
A solicitor can help assess which type of grant is required, depending on the testamentary circumstances of the deceased.
- A Grant of Probate is necessary when a nominated executor is making an application to administer a valid will.
- Letters of Administration with the Will Annexed is needed when the testator has left a will but has either not nominated an executor, or the named person is not available to apply to the Probate Registry. In this case, an “appropriate” person (typically a beneficiary of the estate) can apply for this type of Letters of Administration to carry out the wishes of the deceased as they are expressed in the will.
- Letters of Administration is necessary when someone has passed away without making a valid will (intestate). An appropriate person (typically someone who would inherit under intestacy law) can apply to administrate the deceased estate according to the rules of succession set out in section 14 of the Administration Act 1903 (WA).
The Probate Registry typically issues a straightforward grant within a few weeks, but more complicated matters will take longer to review. There will also be a delay if the Registrar has questions, or there are problems with the application. In that case, the applicant will receive a document called a “requisition”, and they should keep in mind the following information when responding to the requisition:
- The application for probate will not progress until the requisition is adequately answered.
- The answer to the requisition must be in the form of an affidavit unless specifically requested. A statutory declaration is not the appropriate method of response.
- An affidavit response must respond only to the issues raised in the requisition. There is no need to reiterate the information already provided.
- The applicant cannot speak to the Registrar directly about the requisition. Registry staff members are also not allowed to give advice in relation to the requisition. An applicant should consult a solicitor if they need clarification.
- If the requisition suggests that the applicant obtain legal advice, it is advisable that the applicant does follow this suggestion, as the Registrar will have a particular reason for the suggestion.
The specialist contested wills team at Armstrong Legal can answer any questions you may have about requisitions and the Probate Registry in WA, and help you apply for the appropriate grant of probate from the Probate Office. Please call our friendly staff on 1300 038 223 or contact us to make an appointment.