Probate and Letters of Administration
If there are significant assets in the estate (for example, a house or a large sum of money in a bank account) then you will need to obtain a Grant of Probate or Letters of Administration in order to be able to deal with the assets in the estate.
Some estates may be administered informally, without a Grant of Probate or Letters of Administration. If the person’s estate comprises only of the following, then there will likely be no need for a Grant to be sought:
- Any assets jointly owned with another person who has survived the deceased
- Motor vehicles
- Personal effects
- Small sums of money in the bank (although check with the bank first as to what their requirements are for the release of the money).
As solicitors, our role is to make enquiries with the necessary authorities to determine what assets and liabilities were held by the deceased and their requirements are regarding the release of the assets or discharge of the liabilities.
ProbateIf you are named as an executor in a will, and the deceased owned a house or other land or significant property, you will need to apply to the Supreme Court of South Australian for a Grant of Probate.
Probate is the legal process by which a will is proven as the last will and testament of a deceased person and gives the executor named in the Grant the right (and obligation) to deal with the assets and liabilities of the deceased in accordance with the terms of the will.
Letters of AdministrationIf the deceased left no will, that is, they died “intestate”, and you wish to wind up their estate, you can apply for a Grant of Letters of Administration, a similar process to applying for a Grant of Probate.
Letters of Administration with the will annexed
If the deceased left a will, but there is no executor appointed in the will or available to apply for a Grant of Probate, you can apply for a Grant of Letters of Administration with the will annexed, which, again, is a similar process to applying for a Grant of Probate.
The Probate RegistryThe Supreme Court of South Australia that has exclusive jurisdiction to make orders in relation to the validity of a will of a deceased person, the appointment of an executor or an administrator and the administration of a deceased estate.
The Probate Registry, which forms part of the Supreme Court of South Australia, deals with applications for grants of probate or administration and other related matters.
The ProcessWe have the necessary experience and expertise to be able to determine, on a case by case basis, what documents need to be lodged with the Probate Registry to obtain the necessary Grant.
Generally, the following documents are required to be prepared by us and lodged in the Registry:
- The original will if there is one
- A draft copy of the proposed Grant
- The executor’s or administrator’s oath to the Court
- The executor’s or administrator’s affidavit of assets and liabilities of the estate disclosing the full extent of the deceased’s estate
- Registrar’s Certificate or Certificates itemising the relevant assets of the deceased which are required to be dealt with by the executor or administrator.
On application for Grant the Probate Registry ultimately determines what document or documents constitute the last will of the deceased (if there is such a document) and who is entitled to be the personal representative of the deceased (whether as executor or administrator).
When these determinations have been made a Grant is issued in respect of the estate of the deceased person.
Winding up the estateOnce a Grant has been issued, we can assist the executor or administrator in winding up the estate including:
- Writing to the financial institutions to release the monies
- Conducting estate transfers as part of our conveyancing services
- Attending to any share transfers or sales with the assistance of a share broker
- Attending to the taxation obligations of the estate with the assistance of an accountant
- Discharging all debts of the estate
- Distributing all assets (including money) held in the estate after all the debts of the estate (including tax debts) are paid.