When your loved one passes away with a Will in place, generally a Grant of Probate must be obtained from the Supreme Court before the deceased assets can be distributed among beneficiaries. That’s why it’s so important to apply for this authorisation promptly. But how long does Probate take from start to finish?
To answer this question accurately, a range of considerations must be taken into account. Below, we discuss the common factors that influence the length of time it takes to obtain a Grant of Probate.
Firstly, what is Probate?
Issued by the Supreme Court of Western Australia, a Grant of Probate is a legal document that gives an Executor of the Will official authorisation to administer the deceased estate.
Without Probate, asset holders cannot ascertain your authority to manage the deceased’s assets and therefore may refuse access. However, smaller estates and assets held jointly by a surviving spouse may sometimes be accessed without a Grant of Probate.
If the deceased has left no valid Will, then you must apply for Letters of Administration instead of Grant of Probate. This document will permit a suitable individual, such a family member, to administer the estate.
How long does probate take?
On average, Probate takes approximately two months to obtain. However, this duration varies significantly depending on the circumstances, sometimes lasting years. In reality, the length of time it takes to obtain Probate depends on a range of factors:
Securing the Death Certificate
Every Probate application requires a Death Certificate (you will also need this if you wish to make inquiries relating to deceased assets and liabilities). A funeral director tends to manage the Death Certificate application on the Executor’s behalf.
The overall Probate process may be extended by several weeks depending on the time it takes for this document to be issued. What’s more, the issuing of a Death Certificate may be delayed if a coroner is enlisted to confirm the cause of death.
Obtaining a copy of the original Will
In Western Australia, the Administration Act 1903 (WA) governs the Probate process. In order to be eligible for a Grant of Probate under this Act, the Testator’s Will must nominate an individual and/or other legally capable entity as an Executor and detail its beneficiaries.
When someone dies with a Will, a Registrar/Judicial officer must determine the validity of the Will. To do this, you will need to provide the Court with a copy of the original Will as part of your application.
That means you will need to locate the original Will, which often involves spending time searching the deceased’s house and files and/or making enquiries to their lawyers and financial institutions.
Therefore, the quicker you can find the Will, the quicker the overall process.
Valuing assets and resolving liabilities
Publishing a notice of Probate is not legally required in WA. However, you must submit an inventory and valuation of the deceased’s assets and liabilities at the time of death in your application.
Therefore, you’ll have to liaise with asset and liability holders to access and gather such information – a step which can be time-consuming depending on the circumstances.
You will also need to deal with outstanding debts. This can take significant time to organise if liabilities were not clearly outlined by the Deceased before their death.
For instance, you will have to file a final tax return for the deceased estate. If you do not wait for the ATO to process this return, you may be personally liable to pay this tax as the Executor.
Processing the Probate application
If your application is relatively straightforward and goes uncontested, the Probate Office will generally take three to six weeks to issue a Grant of Probate from the time the application is lodged.
However, this timeframe depends on the complexity of your circumstances. For instance, the application will take longer to process if you cannot locate the original Will or the Will’s terms have been disputed.
Responding to requisitions issued by the Court
Sometimes, the Supreme Court will issue a requisition(s) after your application has been lodged. Essentially, this is a request for you to provide further details and/or documentation. As this creates an additional step in the process, it will affect how long it takes to obtain Probate.
Dealing with Will and Probate disputes
If someone has disputed the application, such as claiming that the Will is invalid, then a caveat may be filed in the Supreme Court. In this case, you can only obtain a Grant of Probate once a Judge has resolved the contested application.
Such proceedings can be lengthy, extending the overall application process by months or even years.
Note that there is a 6-month window in which an individual can challenge Probate, and that if there is any possibility of contention, then the Executor cannot distribute the estate until this period is up.
Personalised advice on obtaining Probate in WA
It’s important to seek the support of an experienced Probate lawyer so that you can understand the estimated timeline given your distinct circumstances.
As well as shedding light on key issues like fees and requirements, your lawyer can also guide you through the application step-by-step to ensure you get it right.
At Affinitas Legal, our dedicated lawyers can help you navigate the complexities of applying for a Grant of Probate. If you have been nominated as the Executor in a Will, please get in touch with our team for tailored advice and fixed-fee applications.