Updated: 5 December 2024
Probate is the process of a Court establishing that a Will is valid and represents the final testamentary intentions of the Testator.
When someone dies, their estate is represented by an executor or administrator. If the deceased person has made a Will it is the named executor(s) who will be charged with the responsibility of implementing the terms of the Will and administering the estate.
Usually, subject to the value of an estate, an executor(s) is required to obtain what is called a “Grant of Probate” from the Supreme Court of South Australia. The Grant of Probate is a process whereby a deceased’s Will is validated as being his or her last Will.
Executors are required to act promptly and reasonable to administer a deceased estate on behalf of all beneficiaries, claimants and creditors. They should not delay unreasonably before submitting the Last Will to the Probate Court after the date of the death of the Testator. Typically an Application for Grant of Probate is made within 2-5 months after the deceased’s date of death, however specific legal issues can sometimes cause greater delays.
Upon a Grant of Probate being made, an executor then has the responsibility of implementing the terms of the Will by paying estate debts and liabilities and then distributing the assets of the estate to the nominated beneficiaries.
If a person dies without making a Will the distribution of his or her estate is governed by legislation. Usually a next of kin (mother, father, adult child, brother, sister) applies to the Court to be appointed as the estate’s administrator. Upon being appointed, the administrator then distributes the assets of the estate in accordance with a formula set-out in the State legislation.
To protect the interests of those who hold the deceased’s assets (for example banks) the executor or administrator may be asked to prove they are authorised to administer the deceased estate before the assets can be released. The Grant of Probate or Letters of Administration is a Court Order and is the proof required.
To obtain a Grant of Probate, the executor named in the Will must apply to the Probate Office of the Supreme Court. If their application is approved, the executor is provided a Grant of Probate to confirm that the Testator (author of the Will) has died, that the Will is authentic and valid and that the executor is who they say they are.
An executor can be an individual or a trustee company. There can be more than one executor. Once a Grant of Probate has been given, management of the deceased’s assets can be lawfully performed by the executor.
The Supreme Court registers Wills as part of the Probate process, and if required supervises the conduct of estates to regulate the proper transfer of wealth on death.
To obtain Probate, executors lodge with the Court Registry a statement of the assets and liabilities of the estate, confirmation of the particulars of the Will and an undertaking to deal with the estate honestly and fairly. The forms required by the Court are usually prepared by the solicitors for the estate.
Most applications for Probate are handled administratively and do not usually require a formal hearing or an appearance before a judge. However there are 5 different types of estate administration in South Australia, including 2 types of Probate, and there are risks and personal liability for executors who make mistakes.
People and businesses dealing with executors and estates may insist on the certainty of Probate before they rely on the Will or recognise the authority of the executor.
The nature of the assets and their value will determine whether Probate will be required. It may be possible to deal with all of the assets and liabilities without any one requesting Probate.
Real estate, shares or significant amounts of money are likely to require Probate.
The decision as to whether Probate will be required is not made by you or your family, nor is it the lawyer’s decision. It is made by the asset-holders such as the banks, who often have internal threshold limits above which they want the protection of a Court Order (which is what probate is) before parting with the money. Otherwise they could be taking a risk that the document you think is the Last Will and Testament turns out to have been revoked by another later document.
If the bank pays-out under the wrong document, they have to make good the loss, UNLESS they pay-out pursuant to a Court Order.
That is why nursing homes and banks will often have a limit of about $10,000 – $50,000, above which they will insist on probate.
Once the Court accepts a specific document as being the Last Will and Testament, then the asset-holders are absolved of any risk. In other words, the banks will accept only so much risk and no more. So if at date of death the bank account exceeds the bank’s threshold limit, it will require probate before releasing funds. Incidentally, each bank has its own threshold limits, which vary from time to time and from place to place.
Other people might tell you that it is a good idea to DIY the estate administration to save on lawyers’ fees, BUT it probably won’t be their neck in the noose if things go wrong. In other words, by encouraging you to DIY, they get all the benefit with none of the risk, which will land on your shoulders.
And even if you think you know and trust your own family, strange things can happen when dealing with deceased estates. There is an old expression here: “You never truly know anyone until you’ve shared an inheritance with them”.
So … if you or someone you know has a deceased estate to administer, and want to ensure that the executor does the right thing and will not be personally sued for any mistakes, be cautious, and take advice before you proceed.
When it comes to Probate and administering deceased estates in South Australia, you can trust the oldest law firm in South Australia, Genders & Partners to do the heavy lifting for you and guide you through the process.
Click on this link if you have any questions or would like further information, or use the following link to book a timeslot for a free 15-minute phone consultation on my schedule: https://calendly.com/genders
We can help you to protect yourself and your family. We look forward to being of service.
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More Estate Planning Resources
- FAQs
- Videos
- Articles about Probate
- 12 Dangerous Stresses of Administering a Deceased Estate in SA
- Weird Probate Issues (Popular articles on this topic)
All these and many more estate administration and Probate articles are available for free from the oldest law firm in South Australia.
Disclaimer
The information contained in this document is intended as general information only and has been prepared without taking into account the needs, objectives or financial information of any particular person. Prior to making any decision, you should assess whether the information is appropriate to your particular needs, objectives and financial circumstances.
While Genders and Partners has taken reasonable care in the preparation of this information, subsequent changes in circumstances (including legislative change) may occur at any time and may impact on the accuracy of this information.
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