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Obtaining a grant of Probate, does every Will need Probate?

Here is a guide to applying for a Grant of Probate in South Australia and why it is necessary for you.

Experiencing the loss of a loved one can be a long and difficult process and can become more difficult when the time comes to organise their affairs. Unfortunately, not all individuals leave behind a Will. A Will specifies how the deceased wishes their or estate distributed by their appointed executor. The role of the executor is to act as the legal representative of the deceased’s estate. They must ensure that the wishes set out in the deceased’s Will are lawfully carried out. This includes determining the deceased’s assets and liabilities, notifying relevant organisations such as debtors and creditors of the deceased’s death, and distributing assets to any beneficiaries in accordance with the Will. Generally, an executor will seek legal advice from a solicitor to decide whether a Grant of Probate from the Supreme Court of South Australia needs to be acquired.

What is a grant of Probate?

A grant of probate is issued by the Supreme Court of South Australia and it provides the right for the executor listed in the deceased’s Will to administer the estate in accordance with the terms of the Will.

Grant of Probate or Letters of Administration?

A Grant of Probate and Letters of Administration are both obtained through applications made to the Supreme Court of South Australia. By obtaining one or the other, you are legally authorised to act as a personal representative of the deceased’s estate, and can administer the estate as per the Will’s wishes. Obtaining a Grant of Probate means that a valid Will has been left behind by the deceased which clearly sets out who the executor is, on the basis that the chosen executor is willing to accept this role. On the other hand, if the deceased has not left behind a valid Will, the individual is known to have died intestate. This means that letters of administration will be granted to the person who has an entitlement to apply to be the Administrator of their estate pursuant to the laws of intestacy. This is usually a spouse, domestic partner or child. The Court will take into account all the circumstances of the individual’s relationship with the deceased before granting the Letters of Administration.

What happens if you are unable or unwilling to act as executor?

You may find yourself in a position where you are unable or unwilling to act as executor. You may be finding it difficult to administer the deceased’s estate while grieving their loved one, or you may simply not want to carry out executor duties. If you decide that they do not want to accept your role of executor as per the deceased’s Will, and you have not initiated any dealings with the estate, you can renounce your role as an executor. This means that you no longer have a right to apply to the Supreme Court of South Australia for a Grant of Probate. To renounce your role as an executor, you must lodge the appropriate legal form with the Supreme Court of South Australia declaring that you have chosen to do so. As the Supreme Court forms and process can be quite technical, it is best to first seek legal advice on the matter and instruct a solicitor to carry out the process on your behalf. If you decide you want to renounce your role as an executor, it is preferable you do so before beginning the Probate process and/or administrating the deceased’s estate.

Is Probate necessary?

Not everyone leaves behind a significant amount of assets and liabilities. Some individuals may have their affairs in order prior to their passing away, or may have a small and simple estate. Where property is held jointly between two people, the surviving registered proprietor can transfer that property into their sole name without having to obtain a Grant of Probate. The most common example of this is spouses who own real estate as joint tenants. When the deceased’s estate includes assets or liabilities held in financial institutions, shares, or real estate whereby they are listed as a tenant in common, a Grant of Probate is required. It is essential that you first seek legal advice from a solicitor to help decide whether or not Probate is required, along with advice on how to appropriately administer the deceased’s estate.

How do you avoid needing to obtain a grant of Probate?

If you hold your assets jointly with a spouse or partner, then you will not require the grant of probate. When a spouse or partner passes away, any joint assets will remain the assets of the surviving spouse or partner.

How can we help you?

We understand that the process of administering a deceased estate can be confusing and complex. It involves drafting precise legal documents, and if not properly prepared, can delay the application process.

If you have been named as an executor of a Will, and need help applying for a Grant of Probate or Letters of Administration, CPC Lawyers can help make this process as simple and pain-free as possible.

Contact us:

Call: (08) 7325 0219


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