How Long Does Probate Take in South Australia?
Probate is the process whereby it is established that the Will is valid and represents the final testamentary intentions of the testator, or in legal terms, the proving of the Will.
Types of Probate Applications
There are two kinds of proceedings for obtaining a Grant of Probate: common form for non-contentious proceedings, and solemn form for contentious proceedings.
If a Grant of Probate is sought in solemn form, it is almost impossible to predict how long it will take for a grant to be issued, and, of course, depends on the course of the litigation.
A common form grant is sought when there are no disputes or potential litigation concerning the estate. These applications are generally processed administratively through the South Australian Probate Registry (‘Registry’), by the Registrar of Probates (‘Registrar’).
Probate Processing Time
If the grant application is correctly completed, the original Will is properly lodged with the Registry, and there are no grounds for rejection, the Registrar typically processes the application within 2 to 5 weeks after submission and payment.
However, many issues can arise that may delay or prevent the Grant of Probate from being issued if not rectified before being submitted to the Registry.
Common Reasons for Delays
For instance, the Will may be defective. It might lack a signing clause, may be unsigned or improperly signed, or include handwritten amendments that have not been properly witnessed.
Other common problems include:
Name Discrepancies
Errors in the names of the deceased, beneficiaries, executors, or unexplained changes of names of those persons, or any person mentioned in the Will.
Incorrect Details on the Death Certificate
Inaccuracies on the Death Certificate, such as incorrect names, dates, addresses, or relationship details.
Executor Nomination Issues
Incorrect nomination of executors or improperly documenting the renunciation of alternate executors.
Incomplete Identification of the Deceased
Failing to include all aliases or the full legal name of the deceased.
Low-Quality Will Upload
Poor quality Will copy submitted in the electronic application.
Physical Condition of the Original Will
Submitting an original Will that has deteriorated, is marked, or appears incomplete.
The Will Has No Date
Where the Will is undated, it can be unclear whether it represents the deceased’s final testamentary intentions.
The Will Has Been Tampered With
Any signs of alteration, damage, or tampering with the Will can trigger investigations and requests for additional affidavits.
The Will Has Been Revoked by Marriage
If the deceased entered into marriage after making their Will, the marriage will generally operate to revoke the Will.
Marking of the Will
Non-compliance with South Australia’s Uniform Civil Rules regarding the marking and lodgement of original testamentary documents.
The Deceased Had Assets in Different Names
Where the deceased held assets under varying names, the Registry may require further evidence or explanation to confirm ownership.
Estate Inventory Issues
Incomplete or inaccurate asset and liability statements for the estate.
Example of Registry Concerns
Signed Using Different Pens
In an example we encountered, the Will appeared to have been signed using different pens. The testator’s signature was in black ink, while the witnesses’ signatures were in blue. This discrepancy raised concerns at the Registry about whether the Will had been executed in accordance with the required formalities.
This prompted further investigation into the timing and circumstances of its signing. An Affidavit of Due Execution was then requested from the attesting witnesses. However, one of the witnesses was deceased, and the other did not recall signing the Will.
Missing Original Will
At times, despite ensuring the Registry has been provided with all necessary evidence, more may be required. In a recent matter, the Registry was informed that although a Will had been signed more than 30 years ago, the original could not be found. The Registry rejected the application because there was no Court Order agreeing that the original Will could not be found. The costs to obtain the requested order were going to diminish the value of what was a rather small estate.
We were able to negotiate with the Registry, resulting in the Registry agreeing to accept affidavit evidence rather than insist on Orders being obtained. The delays in this instance could not be foreseen and resulted in a delay of nearly 8 months while trying to obtain all of the necessary affidavits from witnesses.
Minor Errors
Even seemingly minor errors, such as a child’s middle name missing on the Death Certificate, can trigger a complicated rectification process. Correcting these often requires dealing with South Australian Government Departments, amending official documents, sourcing historical records, or locating original witnesses.
These steps can be time-consuming and costly, especially when administrative delays create a domino effect. What might have started as a 2–5 week process can quickly extend into months or even years.
Referral to a Judge
If the Registrar doubts as to whether Probate should be granted in a particular case, or whether the Registrar should exercise a power or discretion relating to the Registrar’s office, the Registrar may seek the direction of a Judge. The Registrar will then act in accordance with that direction.
Key Takeaways
As seen from the above, given the potential complications that may arise in a common form Probate application, the more accurate answer to the question of how long a grant may take becomes: “how long is a piece of string?”
To shorten that ‘piece of string,’ it is clear that getting it right the first time is crucial to avoid unnecessary time and cost.
For more information, contact Bambrick Legal today. We offer a free, no-obligation 30-min consultation for all enquiries.
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Read more about our Probate and Estate Administration services here.
Related Blog – Distribution of an Estate to Beneficiaries in South Australia: Key Steps
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