Probate + Deceased Estate Law 

A Will is a legally binding document with certain requirements and formalities that must be adhered to. If certain requirements are not complied with then your loved ones may face extra legal costs, stress and time when trying to administer your Estate after your death.

It is therefore best that your Will be drafted by a lawyer who can also provide legal advice in relation to Estate Planning and how to decrease the possibility of someone contesting your Will.

At the age of 18, you can make a valid Will. If you are under the age of 18, you can only make a Will if you are, or have, previously been married, or if you have received authorisation from the Court.

In accordance with section 8 of the Succession Act 2023 (SA), the requirements for a valid Will are:

• The Will must be in writing;

• The Will must be signed by the testator or by some other person in the testator’s presence and by the direction of the testator;

• It must appear that the testator signed the Will with the intention of giving effect to the Will;

• The Will must be signed by the testator in the presence of two or more independent adult witnesses who must be present at the same time; and

• The witnesses must also sign their names as witnesses on the Will in the presence of the testator.

You should update your Will when your circumstances or wishes change. A change in circumstance may include marriage, divorce, the birth of a child or grandchild, or the death of a loved one.

You should also update your Will if you purchase or dispose of assets that you have made specific provisions for in your Will.

You may be able to contest a Will on a number of grounds such as:

• At the time the testator made the Will they lacked the testamentary capacity to do so, for example, if they were suffering from a mental illness;

• If the testator was coerced into making the Will or they made the Will under duress;

• If the Will was fraudulently made or the signature on the Will was forged; or

• If the Will did not make adequate provisions for a beneficiary.
  

Where an issue arises and two or more Executors are unable to agree on a matter associated with the administration of an estate, an application can be made to the Supreme Court for advice or direction on the issue. The Judge may make an order or provide direction on the Estate administration.

If the executor is a sole Executor under the Will and dies prior to Probate being granted then the deceased’s next of kin may apply for a grant of Letters of Administration with the Will annexed.

If the Executor dies after Probate has been granted but before the Estate is fully administered then the Executor of the deceased Executor’s Estate will become the Executor.

You should also consider obtaining the following documents:

• Enduring Power of Attorney: An Enduring Power of Attorney document is a legal document that can only come into place whilst you are still alive. It allows you to appoint alternate decision-makers who will be able to sign on your behalf in relation to legal and financial decisions in the event that you become incapacitated.
  

• Advance Care Directive: An Advance Care Directive document is a legal document that can only come into place whilst you are still alive. It allows you to appoint substitute decision-makers who will be able to make decisions based on your health care and living arrangements in the event that you become incapacitated.

If you die without a valid Will then your Estate will be distributed pursuant to the Succession Act 2023 (SA).

Dependent upon the assets that you hold in your Estate, your next of kin may be required to obtain a grant of Letters of Administration.

Please feel free to call us on 08 7325 0219 or send us an email! info@cpclawyers.com.au.

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.

Navigating the complexities of a Probate or Letters of Administration application can be overwhelming. At CPC Lawyers, we offer comprehensive assistance to make this process smoother for you.

We can help you by:

• Interpreting the Will of the deceased;

• Advising executors and trustees on their duties and rights;

• Informing government bodies including Centrelink and Veterans Affairs.

• Applying for probate of the Will in the Supreme Court;

• Dealing with intestacy (where there is no Will);

• Applying for Letters of Administration (if the Will is deemed invalid or is absent)

• Identifying estate assets and liabilities;

• Obtaining valuations of estate property;

• Collecting estate financial assets including superannuation, bank funds, shares, outstanding loans, and insurance payouts;

• Paying estate debts including mortgages, funeral costs, and testamentary expenses;

• Providing advice regarding family and testamentary trusts;

• Distributing bequests and inheritances to beneficiaries;

• Family mediation and negotiation;

• Contesting Wills and defending estate litigation in the Supreme Court.

At CPC Lawyers, our Solicitors will carefully examine the assets and liabilities of the deceased’s Estate to determine whether a Grant of Probate is required. We will ask questions such as whether the deceased owned real estate in their sole name or as a tenant in common, what the date of death balances of any bank accounts of the deceased were, and what the date of death values of any shares held by the deceased was. Your Lawyer will carefully examine the assets and liabilities of the deceased’s Estate to determine whether a Grant of Probate is required. Many questions will be asked, such as:

• Did the deceased own real estate in their sole name or as a tenant in common?

• What is the date of death balances of any bank accounts of the deceased?

• What is the date of death values of any shares held by the deceased?

The assets of the Estate will determine if a Grant of Probate is required. Only assets that are held in the deceased’s sole name will require a Grant of Probate, and if the deceased only had minimal assets then a Grant of Probate may not need to be obtained. If the deceased owned real estate in their sole name or as a tenant in common then a Grant of Probate will always be required.

• If the deceased held a bank account with a balance exceeding $20,000.00 and/or shares with a value exceeding $20,000.00 then a grant of probate will generally be required.

The death of a loved one is a very difficult time and it is important to finalise the deceased’s Estate matters quickly so that those who are close to the deceased can obtain closure. Once the Probate or Letter of Administration application has been lodged it can take anywhere from approximately 2 weeks to 3 months for the Grant of Probate or Letter of Administration to be issued.

All Grants of Probate or Letters of Administration applications are lodged with the Probate Registry, which also deals with other Estate administration matters. All applications made to the Probate Registry must follow the strict rules as set out in the Supreme Court of South Australia Probate Rules 2015. It is therefore important to engage a Lawyer to complete the process in order to minimise any unnecessary delays occurring due to errors.

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As an Executor or Administrator of a deceased Estate, you should have the following information readily available to provide to your lawyer in order to start the process:

• The original Will (if applying for probate);

• The original death certificate of the deceased;

• A list of all of the assets that the deceased held;

• A list of all of the liabilities that the deceased had; and

• Date of death balances of all bank accounts and superannuation accounts in the deceased’s sole name.

If you have set up a Binding Nomination with your superannuation fund then the superannuation will be paid directly to the person that you have nominated as your Binding Nominee. If you do not have a Binding Nomination set up or it is found to be invalid then the trustee of the superannuation fund will have the discretion to decide who the funds are to be paid to. Generally, these funds will be paid to your spouse, dependents or your legal personal representative.

Apart from applying for a Grant of Probate or Letter of Administration, the Executor or Administrator will also need to carry out a number of other tasks. These tasks include distributing assets to the entitled beneficiaries, holding assets in trust for any minors, paying out all debts of the deceased, paying out all funeral and legal expenses, selling any real estate or personal property (if required), and reporting to the Public Trustee (if the deceased died without a valid Will.)

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.