Estates, Probate and Disputing a Will

Estates, Probate Matters and Disputing a Will

If you’re thinking about preparing a Will or you have had a death in the family and have questions about the Estate, or perhaps you’re the executor and trustee of a Will and you’re unsure what this entails.  We have an experienced lawyer who can provide advice on these matters.

The executor and trustee

If you have been appointed the executor and trustee under a Will you now have legal obligations and responsibilities. You may well want some advice on how to go about discharging those obligations and responsibilities.

You should seriously consider taking advantage of our no obligation free first interview with our experienced probate lawyer Jack Hetzel-Bone.

What follows is some general advice and information that is not intended to replace legal advice specific to your situation.

When someone dies there are various legal processes to be followed to finalise their financial affairs and ensure their estate is passed on to their relatives or nominated beneficiaries as per their wishes.

When is a grant of probate required?

A grant of probate is the formal legal process where a deceased’s last Will and Testament is formally approved in the Supreme Court of South Australia.

We can assist you in preparing and filing the required documentation to obtain a grant of probate from the Supreme Court.

This grant of probate provides the appointed executor(s) in the Will with the legal authority to deal with assets of the estate.

Generally, assets will not be released to the estate for distribution to beneficiaries under the Will until after a grant of probate is obtained. However, in some cases an urgent application can be made to obtain a court order to administer at least portions of the estate to prevent loss to the estate.?

A grant of probate is not always required in each case, and in circumstances where the deceased only owned joint property (inclusive of real estate) then it usually isn’t required unless there are other assets which on their own require a grant of probate.

A grant of probate is required in the following types of cases:

• Where there is real estate involved which is not in joint names, or the deceased is the surviving joint tenant.
• If the deceased held a bank account with a balance of $50,000 or more (although the precise amount can vary depending on the bank).
• When there is a nursing home accommodation bond to be refunded to the estate.
• In cases where superannuation is being paid into the estate.

When is a grant of letters of administration required?

A grant of letters of administration is required where the deceased did not leave a Will which is called dying “intestate”.

If a deceased dies without a Will then the law of South Australia determines who receives the benefit of their estate, for example:

• If the deceased died leaving a spouse or domestic partner, but no children, then the surviving spouse and domestic partner receives 100% of the estate.
• If the deceased died leaving a spouse or domestic partner and children, then the spouse receives the first $100,000 and then half the balance of the estate. The children receive the other half of the balance of the estate split equally amongst them.

In cases where a Will is partially completed, or partially invalid, an application should be made for a grant of letters of administration with the Will annexed.

The letters of administration address the area where the Will is inadequate, for example the appointment of an executor, but otherwise leaves the intention of the deceased unchanged.

How long does it take?

In a standard case, a grant of probate can be obtained and the estate of the deceased administered to beneficiaries or next of kin, within the range of 6-12 months of the death of the deceased.

In cases which are complex, the time frame would usually be over 12 months, and can be longer than this as it depends upon the extent of issues and their complexity in the case.

How much does it cost?

The Supreme Court charges a filing fee for all applications for probate, or letters of administration. The filing fee depends on the gross value of the estate and increases annually on 1 July.

In addition to the Supreme Court filing fee (which is payable irrespective of whether a lawyer assists you) there are solicitor costs for drafting the Court documents, advising you on issues which may arise, submitting the documents to the Supreme Court and assisting with finalisation of the estate.

For a standard case, a rough guide of legal costs is $2,300 to $3,500 inc GST. In estate matters it is usual for the legal costs to be paid out of the estate.

If your case is complex then we are unable to provide a standard fee estimate and your fees will vary depending on the complexity of the case.

The Supreme Court current filing fee payable for grants of probate or administration can be found on the Courts SA site.

When is a probate case complex?

The types of probate cases which are typically complex are:

• Where there are marks or damage to the Will or documents appear to be missing from the Will.
• Where a person left an informal Will, or a Will which was not properly witnessed or prepared in accordance with law.
• If the original Will cannot be located.
• If the Will names executors who are no longer alive or willing and prepared to act as executors. Or alternatively, if the Will incorrectly or incompletely disposes of the deceased’s estate.
• In circumstances where the testamentary capacity of the person who made the Will is in doubt.
• Where there is high conflict between beneficiaries, or some beneficiaries believe they deserve a greater share of the estate.
• Where relatives of the deceased have been left out of their Will or left a smaller inheritance than they think is just and equitable and they decide to make a claim under the Inheritance Family Provision Act.
• If the Will has complex clauses such as a life interest, a testamentary trust, or special disability trust.
• If there are assets of the deceased which are held overseas, or a grant of probate from a foreign Court must be re-sealed in South Australia.

DISPUTING A WILL

If you have been left out of a Will then you may have the right to apply for provision, or further provision out of the deceased person’s estate. To be eligible to claim you must be the following relative to the person who is deceased:

• The spouse of the deceased person.
• A person who has been divorced from the deceased person.
• A domestic partner of the deceased person.
• A child of the deceased person.
• A child of the spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person at the time of their death.
• A grandchild of the deceased person.
• A parent of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.
• A brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.

The term “domestic partner” has a specific legal definition so it’s best to seek legal advice on this issue if you are uncertain.

In disputing a will and making a claim against the deceased estate, the legal issue is whether or not the claimant has been left without adequate and proper provision for their maintenance, education, and advancement in life. This involves examining the evidence on the following:

• Identifying the value of all assets in the estate, and all liabilities in the estate.
• The health, educational needs, and financial needs of the claimant, beneficiaries, and any other potential claimant, including the details of dependent
• The financial assistance the deceased may have provided to the claimant during their lifetime.
• Whether the claimant or any other beneficiary has a “moral claim” against the deceased’s estate.
• Weighing the needs of the respective parties to the claim against each other and examining their relative need.
• Assessing the conduct of the claimant towards the deceased during their lifetime to determine whether there is any justification for the claimant being disinherited.

It’s also very important to keep in mind there is a strict time limit for these types of cases which is 6 months from the date of a grant of probate over the Estate. A claim must be filed in the Supreme Court and served on the executor of the estate within this 6 month time frame. We therefore recommend you obtain legal advice as early as possible regarding these types of matters.

In some circumstances Northside Lawyers will act for a claimant on a deferred payment arrangement.