What Is Probate and When Is It Required?

Losing a loved one is never easy, and dealing with legal matters during such a difficult time can feel overwhelming. One of the most common questions families ask is, “Do we need probate?”

Probate is a legal process that confirms the validity of a person’s will and gives the executor the authority to administer their estate. While probate is required in many situations, it isn’t always necessary.

Understanding when probate is needed—and what the process involves—can help reduce uncertainty and ensure an estate is administered correctly.

At Leeuwin Legal Collective, we assist executors and families throughout Busselton and the South West with probate applications and estate administration, providing practical guidance during what is often a challenging time.

What Is Probate?

Probate is a legal document issued by the Supreme Court of Western Australia.

It confirms that:

The deceased’s will is legally valid.
The person named as executor has the authority to administer the estate.
The executor can deal with the deceased’s assets in accordance with the will.

Once probate has been granted, the executor can begin collecting assets, paying debts, and distributing the estate to the beneficiaries.

Why Is Probate Required?

Many organisations will not release or transfer assets belonging to a deceased person without seeing a Grant of Probate.

This provides reassurance that the executor has the legal authority to act on behalf of the estate.

Depending on the estate, probate may be required before:

Selling or transferring property
Closing bank accounts
Accessing investments
Transferring shares
Dealing with certain government agencies
Managing business interests

Each financial institution has its own policies regarding when probate is required.

Is Probate Always Required?

No.

Not every estate requires probate.

Whether probate is necessary depends on several factors, including:

The type of assets owned
The value of the estate
How assets were owned
The requirements of the organisations holding the assets

For smaller estates, some banks and institutions may release funds without probate if certain conditions are met.

Jointly owned assets may also pass automatically to the surviving owner without requiring probate.

Because every estate is different, obtaining legal advice can help determine whether probate is necessary.

What Assets May Require Probate?

Probate is commonly required where the deceased owned assets solely in their own name.

Examples include:

Real estate
Bank accounts
Investment portfolios
Shares
Managed funds
Business interests
Significant personal assets

The executor will usually need to provide the Grant of Probate before these assets can be transferred or sold.

What Happens If There Is No Will?

If someone dies without leaving a valid will, probate cannot be granted because there is no executor appointed.

Instead, an eligible person—usually a close family member—may apply to the Supreme Court for Letters of Administration.

Letters of Administration provide similar legal authority, allowing the administrator to manage and distribute the estate according to the intestacy laws of Western Australia.

The process is generally more complex than administering an estate where a valid will exists.

Who Applies for Probate?

The executor named in the will is usually responsible for applying for probate.

The executor’s role includes:

Locating the original will
Identifying estate assets and liabilities
Applying to the Supreme Court
Managing the estate
Paying debts and expenses
Distributing assets to beneficiaries

Many executors choose to engage a lawyer to assist with this process, particularly where the estate is large or complex.

What Documents Are Needed?

The exact requirements vary depending on the circumstances, but a probate application commonly includes:

The original will
The original death certificate
Probate application forms
An affidavit from the executor
An inventory of estate assets
Supporting legal documents required by the Court

Preparing these documents accurately is essential to avoid delays.

How Long Does Probate Take?

The timeframe varies depending on:

The complexity of the estate
Whether all required documents have been prepared correctly
The workload of the Supreme Court
Whether any issues arise with the application

Once probate has been granted, administering the estate may still take several months, particularly if property needs to be sold or taxation matters need to be finalised.

Seeking legal advice early can help avoid unnecessary delays.

What Happens After Probate Is Granted?

Once the Grant of Probate has been issued, the executor can begin administering the estate.

This generally involves:

Collecting Estate Assets

The executor identifies and secures all assets owned by the deceased.

These may include:

Bank accounts
Property
Investments
Vehicles
Personal belongings

Paying Debts and Expenses

Before distributing assets, the executor must ensure outstanding liabilities are paid.

These may include:

Funeral expenses
Outstanding loans
Credit cards
Utility accounts
Tax obligations

Distributing the Estate

Once debts have been settled, the executor distributes the remaining assets according to the terms of the will.

This must be done carefully to ensure each beneficiary receives their correct entitlement.

What If Someone Challenges the Will?

Occasionally, disputes arise after someone passes away.

A beneficiary or eligible family member may challenge a will for various reasons, including claims that:

Adequate provision was not made for them
The deceased lacked legal capacity
The will was improperly executed
Undue influence affected the making of the will

If a dispute arises, legal advice should be obtained as early as possible.

Common Challenges Executors Face

Many executors are surprised by the amount of responsibility involved.

Common challenges include:

Locating all estate assets
Communicating with beneficiaries
Completing Court documents
Dealing with financial institutions
Managing property sales
Understanding legal obligations
Finalising tax matters

Professional legal assistance can help executors meet their obligations while reducing stress during an already difficult time.

Can an Executor Be Personally Liable?

Yes.

Executors have important legal responsibilities and may be held personally liable if they fail to properly administer the estate.

Examples include:

Distributing assets too early
Failing to pay creditors
Mismanaging estate assets
Breaching their legal duties

Obtaining legal advice helps ensure the estate is administered correctly and reduces the risk of costly mistakes.

Why Professional Guidance Can Make the Process Easier

Although some straightforward estates can be administered without legal assistance, many executors appreciate having experienced guidance throughout the process.

A lawyer can assist with:

Determining whether probate is required
Preparing the probate application
Communicating with the Court
Advising executors on their legal obligations
Assisting with estate administration
Resolving any issues that arise

Having professional support can make the process significantly less stressful.

How Leeuwin Legal Collective Can Help

At Leeuwin Legal Collective, we provide practical, compassionate advice to executors and families navigating probate and estate administration.

Whether you need help determining if probate is required, preparing an application to the Supreme Court, or administering an estate from start to finish, we’ll guide you through each step with clear advice tailored to your circumstances.

Our goal is to simplify the legal process, minimise delays, and help you fulfil your responsibilities with confidence.

Speak With a Wills & Estates Lawyer in Busselton

If you’ve recently lost a loved one and aren’t sure whether probate is required, we’re here to help.

Contact Leeuwin Legal Collective today to book your free 15-minute consultation and receive clear, practical guidance on probate, estate administration, and the next steps in managing your loved one’s estate.