Probate & Deceased Estates Lawyers – Adelaide

A Grant of Probate is a legal process that requires an application to the Supreme Court of South Australia. It requires:

1. an original Will,
2. the Death Certificate; and
3. a statement of all assets and liabilities of the deceased.

There may be circumstances where it may be necessary to prepare further documents required at the time of making an application for a Grant of Probate.

We will be able to advise you as to any supplementary documents that may be necessary during the initial stages.

The process for administering a deceased estate can be straightforward or complex.  Such complexities may include:

• The person passed away without a Will;
• The willmaker’s circumstances or assets substantially changed after the making of the Will;
• The willmaker holds property overseas; or
• The Executor(s) named in the Will may be unable or unwilling to accept the nomination.

A Will gives authority and direction to an executor to deal with an estate.

Obtaining a Grant of Probate essentially registers that Will with the Supreme Court and verifies it as being the last testamentary wishes of a person.

This means it gives the executor the legal right to fulfil the requirements of the Will, however it may not always be necessary.

Several factors determine whether a Grant of Probate is required in South Australia after the passing of a loved one.

1. Real Property

Whenever real estate is involved and it is held entirely in the name of the deceased, a Grant of Probate will be required to transfer that real estate to a beneficiary, or to sell it and transfer the proceeds to a beneficiary.

If property is held as joint tenants with another person or entity, the surviving tenant may not need a Grant of Probate to deal with that property.

For instance, if a husband and wife own a property ‘jointly’ and the husband passes away, the wife only needs to make an application to register the death to have the property title transferred into her sole name, and only a death certificate is required to do this.

It becomes more complex if a property is held as tenants in common, where different parties hold their own share in a property and there is no right of survivorship.

The share in the property owned by the deceased will pass to the estate of the deceased and be distributed to the beneficiaries if a will exists or according to the laws of intestacy if no will was prepared by the deceased.

2. Bank & Financial Institutions

Requirements for funds held in banks or financial institutions in the deceased’s name may not require a Grant of Probate for the funds to be released.

This depends on the institution and the funds held by them on behalf of the deceased.

Each institution has its own requirements, however if it holds funds of say $15,000, most financial institutions require a Grant of Probate before releasing.

In circumstances where the deceased’s accounts are held jointly with another, all that may be required is a certified copy of the Death Certificate and a form to remove the name of the deceased from the account.

3. Shares

A Grant of Probate will normally also be required to sell or transfer a deceased’s person’s shares.

4. Superannuation

Whether a Grant of Probate is required for the release of a superannuation fund will depend largely on whether the deceased made any binding death benefit nominations (BDN).

If the deceased made a valid BDN, the trustee of the superannuation fund usually agrees to pay the funds of the deceased to the nominee(s).

If the deceased did not make a valid BDN, the funds will form part of the estate of the deceased and will be distributed according to the will of the deceased or the rules of intestacy.

The trustee of the fund will make the final decision as to the distribution.

5. Motor Vehicles

A Grant of Probate is not usually required to sell a motor vehicle or to transfer it to a beneficiary.

Instead, an application for the transfer of ownership of the deceased’s motor vehicle ought to be lodged with Services SA.

If there is no Will, then a copy of the Letters of Administration will also be required.

6. Testamentary Trusts

Testamentary trusts are established by a Will and only require the death of the deceased to be enacted.

You ought to be aware that assets that form part of the trust (such as those mentioned above) may likely require a Grant of Probate before they can be released and consequently transferred into the name of that trust.

The role of the Executor(s) is to:

1. make arrangements for the funeral of the deceased;
2. obtain information about the assets and liabilities of the deceased; and
3. upon a Grant of Probate being received, the Executor also has to pay all debts of the estate and distribute them according to the wishes of the deceased.

Some assets can only be dealt with by an Executor(s) after a Grant of Probate has been issued, such as:

• real estate;
• money in bank accounts (over a certain amount); and
• shares that are in the sole name of the deceased.

Some assets can be dealt with without a Grant of Probate which depends on the type, size and value of the asset.

We can assist you in the early stages to advise you on whether a Grant of Probate is required for any of the assets of the deceased.

Read more about Executors here.

In the event there is no will, a Will is unable to be found (known as dying intestate),  or the Will does not comply with the formalities required to ensure that it is a valid Will, an application will still need to be made to the Supreme Court of Australia for someone to deal with assets.

This is known as an application for Letters of Administration.  A person entitled to apply for letters of administration is called an Administrator.  The role of an Administrator is very similar to those of an Executor.

The main difference between a Grant of Probate and Letters of Administration being issued is who can apply.  A named Executor(s) is entitled to apply for a Grant of Probate, whereas if a person passes away intestate or no valid Will can be found, then only certain persons are entitled to make an application for Letters of Administration.

This includes:

• Spouse of the deceased;
• A person who has been divorced from the deceased;
• The domestic partner of the deceased (noting that this is not necessarily a de facto partner);
• Children of the deceased;
• A child of a spouse or domestic partner of the deceased;
• A grandchild of the deceased;
• Parents of the deceased; and
• Siblings of the deceased.