WA wills and estates: probate, deadlines and your next step

Check the will, its witnesses and later relationship changes

Under the Wills Act 1970, an ordinary will must be in writing. The maker must sign, or another person may sign in the maker’s presence and at their direction. The maker must sign or acknowledge the signature with at least two witnesses present together; those witnesses must attest and sign in the maker’s presence. A witness must be able to see and attest the signature.

The maker generally must be at least 18 and have testamentary capacity. WA does not have a general exception allowing a married minor to make an ordinary will. The Act contains historical exceptions, and a court-authorised statutory will has its own requirements. Capacity concerns require individual advice; a diagnosis alone does not settle the question.

Use suitable independent witnesses and obtain advice about conflicts. A beneficiary witnessing a WA will does not automatically void the gift: the former statutory provisions imposing that consequence have been deleted. Poor execution can still cause an expensive dispute.

Marriage generally revokes an existing will, subject to exceptions including a will made in contemplation of that marriage. Under section 14A, divorce or other relevant ending of a marriage on or after 9 February 2008 generally revokes the whole will, unless the required contrary intention appears in the will or other evidence establishes it. Do not assume WA merely removes gifts to the former spouse.

Section 32 allows the Supreme Court to recognise some informal testamentary documents if its requirements, including the deceased’s intention, are proved. An unsigned note is not automatically valid or automatically worthless. Keep every version and obtain advice before discarding anything. Legal Aid WA’s wills guide explains why professional drafting and regular review can help.

A will controls the deceased estate. It does not automatically dispose of every jointly owned asset, superannuation death benefit or trust asset. Ask about ownership, nominations and the particular documents when planning.

Choose the grant route and separate filing fees from legal costs

The Supreme Court’s grant guide distinguishes three common routes. Its WA probate jurisdiction requires property in Western Australia. An asset holder may release some assets without a grant, while sole-name assets or a share held as tenant in common will often require one. Check the Court’s before-applying guide and ask the relevant bank, fund or registry what it needs.

The Court’s current filing instructions say applications can be lodged in person or by post. The Probate Online Application helps prepare uncomplicated probate applications; do not assume that using it completes lodgment or that every probate matter can be filed through eCourts. Follow its instructions and the Registry’s requirements for the original documents.

The Court’s filing page, updated 12 October 2026, says it aims to process applications within four weeks of receipt. Complexity, missing evidence and requisitions can extend this. That is a processing aim for the application, not a promise that the entire estate will be completed or paid out in four weeks.

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1. Gather the original will, original codicils, death certificate and relevant consents or renunciations. Keep copies and follow the Court’s instructions for originals.
2. Prepare the motion, affidavit and statement of assets and liabilities. Check names, dates, ownership, values at death and the information required about witnesses and family.
3. If another executor is not applying, check the notice/consent requirements rather than treating silence as agreement.
4. Keep the accepted application, correspondence and any requisition. Answer requests for further evidence; obtaining a grant and completing administration are separate stages.

The fee table is based on the current fees regulations, Schedule 3 and the Court’s fee page. Schedule 1 litigation concessions are not a universal $100 probate fee. Ask the Registry about any applicable exemption and check fees before filing. Lawyer fees, tax/accounting work, valuations and contested proceedings are separate.

Match the estate dispute to the right deadline

A family provision claim asks for adequate provision for proper maintenance, support, education or advancement in life. It can concern a will or an intestate estate; it is not simply a claim that the will is invalid. Under Family Provision Act sections 6 and 7, eligibility and the merits both need assessment. Being unhappy with an inheritance does not itself establish a claim.

Potential applicants include a spouse or de facto partner, a qualifying former partner with maintenance entitlement, children, and specified grandchildren, stepchildren and parents. The conditions differ. For example, not every grandchild or stepchild qualifies, and the parent category requires the statutory acknowledgment or established-relationship condition. The intestacy rule about two years as de facto partners should not be imported as a universal family provision rule.

A stepchild may qualify through maintenance or, in a separate statutory category, because the deceased received qualifying property from the stepchild’s parent. That category has conditions about the parent’s death, commencement dates and a value exceeding the prescribed $517,000. It is not enough merely to show a step-relationship or an estate of that size.

The Court’s practice directions provide for case management and mediation of family provision matters. Unsuccessful parties can be ordered to pay costs or bear their own costs; the estate does not automatically pay everyone’s bill. Ask about likely stages, evidence, settlement and cost exposure before starting.

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A warning letter, negotiation, hotline call or consultation booking does not itself file a claim or extend time. A notice of intention under Family Provision Act section 20 has its own limits: ordinarily three months from first notice, or sooner twelve months from the relevant entitlement to administer, unless notice of an actual application is received. That is not extra time to start the claim. Ask urgently if distribution is proposed or a deadline may have passed.

Check intestacy and executor duties before distributing

If there is no valid will, or part of the estate is undisposed of, the Administration Act 1903 determines the relevant intestacy distribution after estate obligations. The family tree, relationship dates, net estate and law at death matter. A surviving spouse does not always take everything, and parents or siblings can share even when there are no children.

A qualifying de facto partner can have intestacy rights. The ordinary rule requires at least two years immediately before death, with further rules where a spouse and de facto partner both survive. Do not use a simplified family tree to allocate money in a contested or blended-family estate.

An executor or administrator must collect and safeguard assets, deal with liabilities, keep proper accounts and distribute lawfully. Legal Aid WA’s executor guide and the Public Trustee’s estate guide explain the practical responsibilities. Ask about tax and asset ownership rather than assuming every asset can be paid to a named beneficiary.

Distributing too early or to the wrong person can expose an executor to liability, but liability is not automatic whenever payment occurs before six months. The Family Provision Act contains specific distribution protections and notice conditions. Debts, known claims, beneficiaries’ rights and other duties remain relevant after six months too.

Advertising for claims under Trustees Act section 63 does not provide the same protection for family provision claims or claims to be a beneficiary. Court relief and asset-recovery rules can also matter. Obtain advice on proposed distributions, especially if there is a dispute, an insolvent estate or a vulnerable beneficiary.

1. Create an inventory of assets, ownership, debts and estimated values; identify anything held jointly, in trust, interstate or overseas.
2. Keep estate money and records organised, record receipts and payments, and communicate appropriately with beneficiaries.
3. Before distributing, check outstanding debts, tax, claim notices, proceedings and any necessary court directions. Record the basis for the distribution.
4. If you do not want to act as executor, obtain advice before taking steps with the estate. Renunciation, another executor applying and administration with the will annexed are different options.

There is no single guaranteed completion date for every estate. Do not confuse the Court’s grant-processing aim, family provision time limit, accounting obligations and the practical time needed to finish administration.

Plan separately for decisions during your lifetime

A will operates after death. An enduring power of attorney (EPA) concerns financial and property decisions during life; an enduring power of guardianship (EPG) concerns authorised personal, lifestyle and treatment decisions. They are separate documents even if the same person is appointed.

The maker must be at least 18 and have full legal capacity. An EPA can operate immediately and continue through incapacity, or be activated through the specified Tribunal declaration of incapacity. An EPG operates, subject to its terms, when the maker cannot make reasonable judgments about the relevant personal matters. Check the actual powers and conditions.

An attorney or guardian cannot simply write a will for someone who has lost capacity. The Supreme Court’s statutory-will power under Wills Act section 40 is a separate process for a living person aged 18 or over who lacks testamentary capacity, with safeguards and court approval.

Where necessary, the State Administrative Tribunal can appoint a guardian or administrator under the Guardianship and Administration Act. Appointment requires the statutory criteria and consideration of less restrictive alternatives; it is not automatic because a family member asks. Section 119A removes the application fee under that Act, not every possible professional or administration charge.

The Public Advocate supplies free EPA/EPG information and kits. Follow the current complete instructions and obtain advice if capacity, authority, witnessing or possible misuse is in doubt. This guide is not a substitute execution checklist or a complete treatment-decision guide.

Bring a focused document and date checklist

Start with what you need decided: making or updating a will, obtaining a grant, responding to a claim, protecting an inheritance or planning for incapacity. Put the closest known deadline at the front.

1. Every will and codicil available, including the location of originals and any earlier versions; preserve their physical condition.
2. Death certificate, full names and aliases, dates of death and relevant marriage, divorce or relationship changes.
3. Any grant, Public Trustee authority, application, caveat, court order, hearing notice or requisition, with issue and receipt dates.
4. A family tree and relationship history, including children, stepchildren, grandchildren, former partners and any maintenance or dependency records relevant to the question.
5. An asset-and-debt list with ownership, values and location; existing bank, land, business, trust and superannuation records or nominations.
6. Executor correspondence, claim notices, distribution proposals and records of payments already made; a short chronology of the dispute.
7. For a provision claim, a summary of your needs, income, expenses, assets and liabilities. Ask the lawyer which records are needed and which should be filed.
8. For lifetime planning, existing EPA/EPG documents, the proposed decision-maker’s details and any relevant capacity assessment already obtained.

Keep sensitive family, medical and financial records for an appropriate secure channel agreed with the adviser. Do not treat an AI conversation as privileged legal intake or assume that booking a consultation protects a deadline.

Official help and free legal information

Check the service’s actual scope before relying on it. Free information, preliminary advice, document preparation and representation are different. Fees, eligibility and availability can apply.

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