What is probate and is it needed to finalise a deceased estate?

Probate is the process of proving that a will is valid and is the last will in existence. It is the Supreme Court (either the Probate Registry, if the will is not disputed, or a Judge of the Supreme Court if the will is disputed) that decides whether probate is granted.

Probate being granted allows the executor(s) of the deceased’s estate to formally administer the estate of the deceased person (such as paying estate debts and collecting, dealing with and distributing assets to the beneficiaries under the will).

The purpose of this blog post is to speak to:

• When a grant of probate is required;
• Who seeks the grant of probate;
• The types of probate that may be granted;
• The general process (and Court fees) involved in applying for a grant of probate.

This blog contemplates the circumstances where there is a will with a valid appointment of executors. The letters of administration process is somewhat different, and will be discussed in another blog.

When a grant of probate is required?

A grant of probate is required before the estate of a deceased person can be distributed in some cases in South Australia, but is not required in every case.

As a practical matter, a grant of probate is required when a third party (such as a nursing home, bank or company) will not release assets under the will without a formal grant of probate from the Probate Registry, which is a form of assurance to the third party.

If the deceased owned real property (land) then a grant of probate is required to enable the transfer pursuant to the will to take place.

Who seeks a grant of probate?

It is the executor(s) of the deceased estate, appointed under the will, that are entitled to apply for the grant of probate.  The executor(s) can instruct a lawyer to perform the work associated with obtaining a grant of probate.

Types of probate that may be granted

As contemplated in this blog, the executor(s) of the deceased’s estate can apply to the Probate registry for a grant of probate (to seek that probate is granted in ‘common form’) via the CourtSA portal.

The Supreme Court can also grant probate in solemn form after deciding a dispute.

General process involved in applying for a grant of probate

When making an application for a grant of probate, the executors of the estate will need to provide supporting documents to the application, including:

• Original will and any codicils (additions); and
• Death certificate for the deceased; and
• Details of the assets and liabilities of the deceased.

There is a fee for applying for a grant of probate. The fee is determined by the size of the estate. A list of the fees can be accessed here.

If you would like assistance with applying for a grant of probate and administering an estate, contact the team at MKF Lawyers by telephone on 08 7093 2998 or by email at info@mkflawyers.com.au.

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