Deceased Estates, Grants of Probate and Intestacy
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 can provide advice on these matters.
The executor and trustee appointed in a Will
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.
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.
What follows is some general advice and information that is not intended to replace legal advice specific to your situation. You should seriously consider taking advantage of our no obligation free first interview to get information about your particular circumstances.
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.
A grant of probate is not always required in each case. In circumstances where the deceased only owned joint property (inclusive of real estate) and the other joint owner outlived the deceased, then a grant of probate likely won’t be required unless there are other assets which will 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 of real estate held in joint names.
- 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?
- The deceased person died intestate (without leaving a Will)
- None of the executors named in the Will is still living
- None of the executors named in the Will is able, or is willing to undertake the duties of executor.
If a deceased dies without leaving 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.
In cases where a copy of the Will is available but the original Will document cannot be found, letters of administration with the copy Will annexed will need to be applied for.
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 deceased’s estate and increases annually on 1 July. The current Supreme Court filing fee and other information can be found here.
In addition to the Supreme Court filing fee (which is payable irrespective of whether or not a lawyer assists you) there are solicitor costs for drafting the Court documents, advising you on issues which may arise and submitting the documents to the Supreme Court to have the grant made.
For a standard case, a rough guide of legal costs is $2,200 to $3,500 inc GST. In estate matters
When is a probate case complex?
Some examples 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 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.
- 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.