What is Probate ?
Probate is the process of proving a will to in fact be the final will of a deceased person by registering it at the Probate division of the Supreme Court of Western Australia (the ‘Probate Office’). It is generally referred to as making an application for a Grant of Probate.
Why is Probate required ?
After someone has died the deceased person’s assets must be collected and the estate distributed according to the terms of the Will. However, the organisations that actually hold the assets (the banks, the Land Titles Office etc) need to be satisfied that the person acting on behalf of the estate is legally entitled to do so.
The Executor must apply to the Supreme Court of Western Australia Probate Registry to obtain a Grant of Probate.
What happens if there is no will ?
If no Will exists an application must be made for Letters of Administration.
If there is a will, the person who applies for a Grant of Probate is called the Executor. If there is no will, the person who applies for Letters of Administration is called the Administrator. Once authorised to act, an Executor and Administrator have the same powers (and responsibilities).
Sometimes, the person named as an executor in the will is unable or unwilling to act (the named executor might have already died on simply be unwilling to act). If no substitute executor is named in the will, an application has to be made for Letters of Administration (with the will annexed). Usually, this application is made by a person who is a beneficiary of the will.