Where there is a will
When a person dies leaving a will, certain procedures have to be gone through before that person’s wishes can be carried out. Usually a grant of probate (registering of the will by the Supreme Court) is required so that the assets of the estate may be collected for the beneficiaries. Small estates can often be handled without obtaining a grant of probate but large amounts of money and assets such as land cannot be transferred or sold without a grant of probate. If a will is defective or is challenged, it may not be possible to obtain probate of it.
A grant of probate or letters of administration with the will annexed also gives protection to the beneficiaries, who can then be assured of being the only people who will receive the property of the deceased. If another person disputes their claim by the production of another will, the only way that person can receive any of the estate is to apply to the court to revoke or change the grant of probate.
If no executor has been appointed or no executor is able or willing to handle the estate, an application must be made for a grant of letters of administration with the will annexed.
What if it is not known if there is a will?
For a grant of probate to be made, there must be a will. The family may not know whether or not the deceased person left a will or, if there is a will, where it can be found. If the will is not with the deceased’s personal papers, checks could be made with the deceased’s bank, insurance company and lawyer. A deceased may have left a will with the Public Trustee or a private trustee company. If no will can be found, the person is treated as having died without a will (intestate).
If there is no will
It is not possible to obtain probate if a deceased person has not left a will. Instead it is usually necessary to apply to the court to appoint an administrator to carry out the order of the court known as letters of administration.
When there is no will to follow, the estate is distributed in the order set out in the Administration and Probate Act 1919. No notice can be taken of any wishes of the deceased that are not expressed in a will.
Partial intestacy and lapsed gifts
Where a will distributes only part of a deceased’s estate (which means that the person died partially intestate), the part of the estate that has not been disposed of by the will is divided according to the order set out in the Act.
Obtaining a grant of probate
In most cases there is no dispute as to whether a document is the last will of the deceased and probate is granted in common form without a court case. Obtaining the grant involves the preparation and lodging of several documents at the Probate Registry of the Supreme Court of South Australia at 1 Gouger Street, Adelaide, tel. 8204 0505. The documents to be lodged are an executor’s oath, the original will, a draft grant of probate and an affidavit of assets and liabilities which must have a schedule of assets and liabilities annexed or attached to it. Where there is a dispute which has been decided by the Supreme Court, the Probate Registry gives a grant of probate in solemn form.
When preparing the schedule of assets and liabilities, it is necessary to disclose all of the deceased estate’s assets and liabilities. Failure to do so is an offence under the Act.
How long does probate take?
Probate cannot be granted earlier than 28 days after the death of the deceased. Normally the grant is made within 2 to 5 weeks of the application if all the papers are in order. If there is any doubt or difficulty about a will, the Registrar may require that further affidavits are filed.
Payment of debts
Before the assets of the deceased estate can be distributed to beneficiaries, the funeral expenses may have to be paid. The person who orders the funeral is responsible for paying the account but is entitled to be repaid for the reasonable cost of the funeral before other creditors are paid.
Creditors of an estate must wait until the assets of the estate are available to the executor and reasonable funeral and testamentary expenses are paid before they may receive payment.
If the deceased had more debts than assets, it is necessary to deal with the estate in a different way from a normal administration. The executor, administrator or creditor of the deceased may file with the Registrar of Probate a declaration that he/she believes the estate to be insolvent.
Release of assets
When an estate is very small, there may be no need to obtain a grant of probate or letters of administration. If a bank account is in the deceased’s name only, banks will usually release enough to cover funeral expenses, or for a surviving spouse or children if the amount does not exceed a certain limit. All the money in a joint account automatically goes to the survivor when one of the account holders dies.
Where the deceased owned a house or land or an interest in a house or land (such as a mortgage or lease) in his or her name only, it is necessary to obtain a grant of probate or letters of administration. No grant of probate is required to deal with a house or land owned as a joint tenant. A surviving joint tenant automatically gets the whole property when one joint tenant dies. The deceased person’s interest does not form part of the deceased estate.
The only requirement for the transfer of a motor vehicle to a beneficiary is the changing of the name of the owner for registration purposes. A grant of probate or letters of administration is not needed for this. An application for transfer of ownership form must be lodged with the Registration and Licensing section of Transport SA. In order to obtain a reduction of stamp duty, the beneficiary must sign the declaration on the back of the form which states that the vehicle is transferred in the terms of the will of the deceased owner and a reduction of stamp duty is claimed.
Personal goods and belongings
Generally there is no special procedure required for the transfer of these items.
No beneficiary has a right to any of the deceased’s property until the executor distributes the estate. This can cause hardship if the main beneficiary is a spouse who has no other source of income. Such hardship may be avoided by spouses keeping a joint bank account. On the death of either, the whole of the account passes to the survivor. A widow may be eligible for the Widow Allowance or other social security entitlement and a widow or widower may be able to obtain a loan using the estate as security. In some cases an executor, such as the Public Trustee, will make a partial distribution, or an advance, to a widow or widower.
There is no longer any kind of death duty in Australia. If a person died before 1980 and the estate has been left unadministered, death duties may be payable. Death duties may be payable in another country if assets are owned in that country.
This information is not intended as a substitute for legal advice. It should be used as a guide only.