Probate is the process of a Court establishing that a Will is valid and represents the final testamentary intentions of the Testator. There are time limits for a Will to be submitted to the Probate Court after the date of the death of the Testator.
When someone dies, their estate is represented by an executor or administrator. If the deceased person has made a Will it is the named executor(s) who will be charged with the responsibility of implementing the terms of the Will and administering the estate.
Usually, subject to the value of an estate, an executor(s) is required to obtain what is called a “Grant of Probate” from the Supreme Court of South Australia. The Grant of Probate is a process whereby a deceased’s Will is validated as being his or her last Will. Upon a Grant of Probate being made, an executor then has the responsibility of implementing the terms of the Will by distributing the assets of the estate to the nominated beneficiaries after payment of liabilities and expenses.
If a person dies without making a Will the distribution of his or her estate is governed by legislation. Usually a next of kin (mother, father, brother, sister) applies to the Court to be appointed as the estate’s administrator. Upon being appointed, the administrator then distributes the assets of the estate in accordance with a formula set-out in the State legislation.
To protect the interests of those who hold the deceased’s assets (for example banks) the executor or administrator may be asked to prove they are authorised to administer the deceased estate before the assets can be released. The Grant of Probate or Letters of Administration is the proof required.
To obtain a Grant of Probate, the executor named in the Will must apply to the Probate Office of the Supreme Court. If their application is approved, the executor is given a Grant of Probate to confirm the author of the Will has died, that the Will is authentic and that the executor is who they say they are.
An executor can be an individual or a trustee company. Once a Grant of Probate has been given, management of the deceased’s assets can be transferred to the executor.
The Supreme Court registers Wills and supervises the conduct of estates to regulate the proper transfer of wealth on death.
If satisfied, the Court Registry certifies the Will as in order and the authority of the executor to act in accordance to the Will. This is called Proving the Will and the form of the certificate is called “Probate”.
To obtain Probate, executors lodge with the Court Registry a statement of the assets and liabilities of the estate, confirmation of the particulars of the Will and an undertaking to deal with the estate honestly and fairly. The forms required by the Court are usually prepared by the solicitors for the estate.
Probate is usually handled administratively and does not usually require a formal hearing or an appearance before a judge.
People and businesses dealing with executors and estates may insist on the certainty of Probate before they rely on the Will or the power of the executor.
The nature of the assets and their value will determine whether Probate will be required. It may be possible to deal with all of the assets and liabilities without any one requesting Probate.
Real estate, shares or significant amounts of money are likely to require Probate.
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Check out the full report containing A Guide for Beneficiaries of a Deceased Estate in South Australia from senior Australian lawyer Rod Genders.