What is Probate?

If a person dies with property in South Australia, depending on the circumstances, the value of the property and how the property was owned, a grant of Probate or Letters of Administration may be required in order for that property to be dealt with.

A grant is given by the Supreme Court of South Australia and is recognition that the personal representative specified in the grant has legal authority to deal with the deceased’s assets and administer the estate, which includes gathering all of the deceased person’s assets, paying their debts and distributing the remaining assets to the beneficiaries in accordance with terms of the Will or the laws of intestacy.

We can advise if a Grant is required, the type of Grant that should be applied for, and prepare the application to be submitted to the Supreme Court.

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Types of Grants

Where there is a Will appointing an executor who is willing and able to act to administer the deceased’s estate, an application for a grant of Probate should be made.

This grant is the official acknowledgement of the Supreme Court that the Will is valid and the executor has the authority to administer the estate in accordance with the terms of the Will.

Where there is a Will and either no executor is appointed or the executor is unwilling or unable to act, an application for a grant of Letters Of Administration with the Will Annexed should be made.

This grant provides the administrator with the authority to administer the deceased’s estate in accordance with the terms of the Will.

This type of grant should be sought when the deceased has died intestate- that is, without making a Will. The Court will appoint an Administrator to deal with the estate and distribute it in accordance with the laws of intestacy.

 

How does this process work?

  • Call us as soon as possible after the passing of your loved one. If you are the appointed executor in the Will, this allows us to give you advice about what you are permitted to do with your loved ones assets in the early stages following their death and on the time frames within which you must act in addition to advising you on what steps you need to take and when.
  • During this call, we will ask you some questions regarding your loved one and advise you if a grant is in fact required. If it is, and you are the appointed executor or other appropriate person to apply for the grant, will provide an estimate of our fees. We work on a fixed fee basis and will always let you know the full costs up front.
  • From the initial or follow up phone call, we will arrange a time that suits you to meet with you to provide more detailed advice regarding the application process and the documents required.
  • We will then draft the application documents and meet again for you to sign them before we submit them to the Supreme Court of South Australia for processing.

We understand that administering an estate can be confusing and complicated and we are here to make the process as easy as possible for you.

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Frequently asked questions

A grant of probate, letter of administration with the will annexed or letters of administration is required in estates due to the nature of the assets held by the deceased person that will not be released by a third party without a grant being obtained.

For estates in which the deceased held assets such as land, a nursing home bond, bank accounts exceeding a certain threshold (determined by the bank), shares and even some superannuation policies, a grant will be required.

A grant is not required for assets held jointly with another person and this property can be dealt with by removing the name of the deceased person following their passing to reflect ownership of the surviving owner.

The type of grant will depend on if the deceased left a valid will or not.

If a valid will appointing an executor who is willing and able to act was left by the deceased, a grant of probate will be required.

Where a will was left and no executor was appointed or is willing and able to act, a grant of letters of administration with the will annexed will be required.

Where there was no will, the deceased is deemed to be intestate and a grant of letters of administration should be applied for.

There are many factors that impact on the time taken to obtain a grant from the Supreme Court including;

Whether the deceased left a valid will and the condition of the will or any errors contained in the will. Sometimes, affidavits are necessary to submit with the application, such as:

  • an affidavit explaining the condition of a will;
  • an affidavit establishing that the will was properly executed; or
  • an affidavit explaining the name of an executor being spelt incorrectly or a name being omitted from the will;

Number and type of assets held by the deceased and the time taken for third party asset holders to respond to requests for information;

Availability of details relating to the deceased’s assets and liabilities.

We understand that obtaining a grant is complex and stressful at an already difficult time. We aim to streamline the process for you through out the course of your matter to reduce stress for everyone involved.

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