What is Probate?
Probate is the process by which a deceased person’s will is “proved” in the Probate SA Registry of the Supreme Court of South Australia. Before any executor named in the will can legally deal with a deceased’s person’s assets, the Court must be satisfied that the person’s will is valid and that it is their last will and testament. Once satisfied, the Court will issue a certificate known as a Grant of Probate. The Grant gives the named executor(s) legal authority to deal with the estate, to pay any debts and expenses and to distribute the estate to the beneficiaries in accordance with the terms of the will.
When is Probate required in SA?
A Grant of Probate is not always required; this very much depends on the nature and the value of the assets held by the deceased.
Probate will not be required for any assets the deceased held jointly with another person. Pursuant to the principle of survivorship, the ownership of jointly held property will automatically pass to the surviving joint tenant upon death. Therefore, a Grant of Probate would not be required to deal with jointly owned real estate or bank accounts. It is this principle that can be used in certain situations to avoid a contested Will situation – see our article: “How to Avoid a Deceased Estate Inheritance Claim“.
However, a Grant of Probate will be required in order to sell or transfer any real estate owned by the deceased in their own name or with others as a tenant in common.
If the deceased estate is comprised solely of low value assets, then a Grant of Probate may not be required. Each institution has its own requirements and will inform you whether or not a Grant is needed. Most banks, financial institutions, share registries or aged care facilities will require a Grant of Probate to release or transfer assets valued at more than $20,000.
A Grant of Probate will not be required for superannuation death benefits which are paid directly by the superannuation trustee to a dependant as the proceeds are not considered estate assets. However, if the superannuation trustee determines to pay the death benefit to the deceased’s legal personal representative (the executor), then a Grant will be required.
If the deceased died somewhere other than South Australia it may be necessary for the Executor to obtain a re-seal of probate in SA.
How do I obtain a Grant of Probate?
In order to obtain a Grant of Probate the executor or executors named in the Will must make an application to the Probate SA Registry of the Supreme Court of South Australia. There are very strict rules and forms to follow and the application can be quite complex especially if there are any defects in the Will or if the witnesses cannot be contacted. Usually an executor will instruct a solicitor to make the probate application on their behalf.
There are four main documents that must be prepared for any probate application:
- Draft Grant of Probate;
- Executor’s Oath;
- Affidavit of Assets and Liabilities together with the Statement of Assets and Liabilities; and
- Registrar’s Certificate.
The original will must be lodged with the application. It is very important that the Will is in good condition and that it has not been altered in any way.
Sometimes, in more complex matters the application will need to be accompanied by additional documents and affidavits. This includes situations where:
- the deceased’s name was misspelt on the will or where the deceased used multiple names or different versions of their name on either the Will or the ownership of assets;
- the will has been altered, marked or damaged in some way;
- the original will has been lost or destroyed;
- the witnesses cannot be contacted;
- there are concerns as to the validity of the will or the testamentary capacity of the deceased; or
- the date of death is uncertain.
In complex applications it is not uncommon for the Probate Registry to issue a Requisition Notice seeking amendments to the documents filed.
How long will it take?
The Probate SA Registry cannot issue a Grant of Probate within 28 days of the death of the deceased (Probate Rule 10.03). In any event, obtaining the information required to complete the Statement of Assets and Liabilities, for example writing to banks and other institutions can often take a number of weeks.
A straight forward Grant of Probate usually takes between five to eight weeks from the date it is filed at the SA Probate Registry, depending on the workload of the Registry. If the Probate Registry requests further information or issues a Requisition Notice, it can take longer.
How much will it cost?
The cost of obtaining a Grant of Probate is paid for out of the estate and executors will not incur any personal liability for instructing solicitors to undertake this task on their behalf. Legal fees will usually be deducted from the estate towards the conclusion of the matter.
In addition to legal fees payable to a solicitor, a filing fee for the probate application is payable to the Supreme Court. The filing fee is calculated on a sliding scale based on the gross value of the estate assets.
For information as to our current fees see: “What Costs are Involved“.
What happens once probate is granted?
Once the Grant of Probate is issued, the executor will need to call in the assets and pay any outstanding debts and liabilities. Once this is done, then the executor can distribute the residuary estate in accordance with the terms of the will. This may involve payment of legacies, delivering specific bequests and transferring cash or assets to the named beneficiaries. In some cases the executor will need to file a final tax return on behalf of the deceased.
If an executor has been notified that a person intends to make an inheritance claim on the estate, it is usually recommended that the estate not be distributed within six months of the Grant of Probate. See: “Contested Wills and Inheritance Claims” for more information on contested Wills.