We deal with probate applications and matters concerning deceased estates every day. This means you can trust our probate lawyers to assist you with any of your issues related to validating Wills and completing the probate process.
If you are looking for experienced Adelaide probate court lawyers, call us to arrange a free consultation on a no obligation basis. We will be pleased to answer any questions related to probate and provide you with a fixed fee.
Probate SA – what you need to know:
- Is Probate Necessary?
- Applying for Probate
- Probate FAQ’s
- Applying for Letters of Administration
- What Costs Are Involved?
Is Probate Necessary?
An application for probate is not always necessary. Assets held by the deceased on trust or jointly with another person will not form part of the deceased’s estate. Usually, deceased superannuation proceeds also will not form part of the deceased estate (however, some superannuation fund trustees may require the executor or administrator to obtain Probate or Letters of Administration).
Probate or Letters of Administration will be required if the deceased owned a house or other real estate property. Most financial institutions will require Probate or Letters of Administration if the deceased had funds deposited above that financial institution’s “policy limit” (for many financial institutions that amount was about $60,000 in 2020). If you are not sure whether an application for Probate is necessary, our Adelaide probate lawyers would be pleased to talk to you on a no obligation basis. If you are planning on contesting a Will you will also require legal assistance.
Applying for Probate
If it is necessary to apply for a grant of Probate, it is the executor that applies. It is not strictly necessary for the application to be prepared by probate lawyers but we strongly advise this to ensure it is completed correctly. Whilst the application is administrative in nature it is quite complex and a large number of rules and formalities must be followed.
Probate is a certificate granted by the Supreme Court of South Australia to the effect that the Will of a deceased person has been proved and registered in the Court. The Grant of Probate gives the executor(s) of the Will the power to administer the deceased estate. The executor then has a responsibility to administer the estate in accordance with the deceased’s Will. This may involve selling or transferring property to beneficiaries, paying the deceased’s outstanding debts, tax affairs, closing bank accounts and distributing the funds or holding assets on trust for beneficiaries named in the Will.
In order to obtain a grant of Probate the Court must be provided with the original Will and information relating to the executor(s). Importantly, the Court must be provided with a detailed list of the assets and liabilities of the deceased that existed at the date of their death, along with the values of those assets and liabilities. Identifying the deceased’s property accurately is the first step in administering their affairs.
The documentation required by the Court is quite complex. Our Adelaide probate lawyers can assist in preparing the documentation for submission to the Court. After Probate is granted, the executor may wish to administer the deceased estate to minimise costs, although solicitors are often engaged for parts or all of the estate administration.
Yes, a Will can be contested after Probate has been granted. An application (to contest the Will) must be made within 6 months of the Grant of Probate and prior to the final distribution of the estate. The Court may extend the time within which an application can be made but only if the application for an extension of time is made prior to the final distribution of the estate. (see Section 8 of the Inheritance (Family Provision) Act 1972 (“the Act“)). It is important for anyone wanting to contest a Will to first determine if they fall into the category of people eligible to contest (see Section 6 of the Act) and then to notify the Executor of the Will as soon as possible of their intention to contest or make a claim on the estate. The actual claim consists of a Supreme Court summons supported by an affidavit that must be filed and served on the Executor of the Will within 6 months of the grant of Probate. If you are the Executor of a Will and there is a prospect of someone making a claim then as Executor you should wait until 6 months from the grant of Probate before distributing the estate and consider advertising the grant of Probate and your intention to distribute the estate. See also “Contested Estates and Inheritance Claims“.
There is no requirement in SA to advertise a grant of Probate although in some situations it may be considered prudent to advertise the intention of an Executor to apply for Probate of a particular Will of the deceased identified by date. This gives anyone the opportunity to come forward if they are in possession of a competing, more recent Will. Similarly, after the grant of Probate, it may be considered prudent to advertise the the grant of Probate and the Executor’s intention to distribute the estate if it is thought that there may be creditors of the estate yet to come forward. Solicitors do not routinely advertise grants of Probate in SA and would only do so if the circumstances of the estate required this.
The Executor(s) is the only person who can apply for a grant of Probate of a deceased’s Will unless the Executor lacks capacity and has appointed an attorney specifically conferring authority on the attorney to act in their place as legal personal representative. If an Executor who lacks capacity has not appointed an attorney , or if an Executor has died, then a different procedure applies and an application must be made for a grant of Letters of Administration.
The cost of obtaining a grant of Probate is an estate expense together with other estate expenses such as the cost of obtaining valuations, sales commissions, accounting advice and preparation of a final tax return. Most Wills provide that the deceased’s debts and estate expenses are to be paid from the estate before anything else. Section 51 of the Administration and Probate Act, 1919 states that an Executor or Administrator shall be entitled to sell a deceased’s real estate to pay estate debts.
Yes. The Executor of the Will is the person who makes the application for Probate therefore if there is more than one Executor named in the Will then all Executors can apply for Probate. However, a named executor may renounce and if only one of the Executors wishes to take on the responsibility of applying for Probate and administering the estate, an application can be made by one Executor with “leave reserved” for the others to apply should it become necessary down the track.
Applying for Letters of Administration
Letters of Administration may be granted by the Court where a person possessed of property dies without a Will. Letters of Administration may also be granted where a Will exists, but where that Will does not name an executor.
Letters of Administration grant powers and duties to the administrator and are virtually the same as that of an executor who has received a grant of Probate. An administrator may be required to enter into a bond with the Court, depending on the circumstances. Special rules apply as to who is able to apply for Letters of Administration. The applicant must have an interest in the deceased estate as a beneficiary and be the first in the order of priority described in the Court rules, which is: spouse, children, parents, siblings, grandparents and uncles and aunts.
Letters of Administration may be more complicated than a grant of Probate and we strongly suggest that you seek advice from probate lawyers if a family member passes away without leaving a Will. In these circumstances, the deceased estate must be distributed to beneficiaries as set out in legislation. Generally, the estate will be split between the spouse of the deceased and any children, then parents and then siblings.
What is the cost of probate?
If deceased estate assets are distributed in accordance with the terms of the Will there will be no stamp duty payable by the beneficiary or the estate.
Legal costs associated with probate are payable by the estate. It is of course true that the more costs an estate pays, the less that will be available for distribution to beneficiaries. We are therefore as cost conscious and commercially minded with probate and deceased estates as with any other matter.
We charge for our legal work on a time basis in accordance with our legal services agreement. We will be able to provide you with an estimate of our costs once we understand what work is necessary. In our experience the cost of an application for probate starts at $3,500 plus the Supreme Court filing fee and GST. The Supreme Court filing fee is determined according to the gross value of the deceased estate as follows:
|Estate value||Filing fee|
|Less than $200,000||$869|
|Between $200,000 and $500,000||$1,738|
|Between $500,000 and $1,000,000||$2,316|
|More than $1,000,000||$3,475|
Generally, we require payment of the filing fee in advance but we understand that payment of our fee may not always be possible until distribution of the deceased estate.
Our probate, wills and estates lawyers are here to help you during this difficult time. Read our client reviews and then talk to us about your deceased estate and probate application matter on a no obligation basis. From disputing a Will after probate to testamentary trusts, our estate planning lawyers are also here to assist you.
Contact us on 8362 6400 now or email our Adelaide probate lawyers below for more information.