Probate
It’s complicated
When a person dies they usually leave behind a Will that specifies what is to happen to their assets upon their death. The Supreme Court of South Australia is the Court which has the exclusive jurisdiction in this State to make orders in relation to the validity of a Will of a deceased person, the appointment of an executor, and the administration of a deceased estate.
A grant of Probate is the official recognition by the Court of the right of a personal representative to administer the estate of a deceased person. Download our brochure “Executive Duties in a Deceased Estate”
If a person dies without a Will, or with an invalid Will, they die intestate. The Administration and Probate Act 1919 specifies who will benefit from the assets of the deceased and who can be appointed an administrator (a similar role to that of an executor).
An application similar to a grant of Probate will need to be submitted. Similar responsibilities to that of an executor (the payment of liabilities including tax, distribution of the estate, controlling and securing assets and generally representing the interests of the deceased) apply to administrators, with additional requirements being imposed because the deceased did not choose the administrator.
A document must only comply with the minimal conditions set out in the Wills Act to be considered a legal Will. The requirements are not difficult to achieve.
It is true, something written on the back of the proverbial corn flakes packet might be considered a valid Will.
The issues with Will Kits arise after the person who wrote it has died and their family or loved ones are attempting to administer their estate. Problems might arise which can often lead to delays in administering or finalising an estate and also lead to additional expense in trying to rectify or resolve the issues that arise.
What you own and how you own them is critical in professional estate planning.
Do you own your property as joint tenants?
Did you know that an asset owned in joint tenancy does not pass to your estate upon death?
Are there assets in a Family Trust?
Did you know that assets held in trust cannot be gifted in your Will upon death?
Do you own your property as joint tenants?
Did you know that an asset owned in joint tenancy does not pass to your estate upon death?
Are there assets in a Family Trust?
Did you know that assets held in trust cannot be gifted in your Will upon death?
Binding and Non-Binding Death Benefit Nominations in your Superannuation Fund need to be explored and discussed to achieve sound estate planning.
If you have separated from your spouse they may still be entitled to claim from your Super Fund unless it is dealt with effectively.
Appointing your young children as beneficiaries may not result in your desired outcome should you die.
If you have separated from your spouse they may still be entitled to claim from your Super Fund unless it is dealt with effectively.
Appointing your young children as beneficiaries may not result in your desired outcome should you die.
You cannot forget about your debts!
What is the tactic for payment on your death? Will you leave debts behind for loved ones to pay?
How will your family survive without your income after your death?
A clear and precise strategy should be engaged.
Contact us for more information
Moral Obligation
Guardians of infant or young children…who should you appoint and should they receive financial consideration?
Guardians of infant or young children…who should you appoint and should they receive financial consideration?
What are the varying needs of individual family members?
Domestic Partnership definitions…getting married in the near future…just divorced?
The threat of an Inheritance Claim is always present!
Although small issues such as paperclip marks, a Will that has been re-stapled or small imperfections can be easily explained, they will need to be explained in detail before a grant of Probate is issued.
Additional marks made by the deceased made on the Will after it had been signed may require an order from the Supreme Court to allow the grant to be made.
Damage to the Will may be so great that the Supreme Court will assume that it was intended to be revoked by the deceased. Evidence will be required to rebut that presumption and obtain a grant of Probate on that Will.
The Probate Rules determine the order of priority for those who can apply to be administrators of an intestate estate.
A person in a lower priority cannot an application unless those above them have died, do not exist or renounce.
The order of priority is:
+Spouse (or domestic partner)
+Children of the deceased (or grandchildren)
+Father or Mother of the deceased
+Brothers and Sisters of the deceased
…and so on.
+Spouse (or domestic partner)
+Children of the deceased (or grandchildren)
+Father or Mother of the deceased
+Brothers and Sisters of the deceased
…and so on.
The Administration and Probate Act determines who (and how much) each person in relation to the deceased is entitled from an intestate estate.
If the deceased is survived by children only (no spouse) then those children will inherit the estate equally between them.
If the deceased was survived by a spouse only and no children than the spouse will inherit the entire estate.
If the deceased is survived by a spouse AND children then the spouse will receive the first $100,000 in value and half of the remainder whilst the children will inherit the other half of the estate equally between them.
WARNING:If any beneficiary to an intestate estate is a minor child or incapacitated then their share must be paid over to the Public Trustee for administration.
Those decisions are made by a person appointed under an Enduring Power of Guardianship or sometimes by a Medical Power of Attorney.
Contact us for more information
Contact us for more information
To cancel an attorney, you must sign a document revoking the power and a copy of this revocation should be given to all attorneys appointed.
Destruction of any original or superseded appointment is also recommended.
Separation from a spouse or partner does not revoke their appointment as an attorney.
We can answer all of your Estate Planning questions
Contact us for more information
Contact us for more information
A grant of probate may still be made on a lost (copy) Will with an application to the Supreme Court.
You can oppose that order being made if you believe the Will was destroyed by the deceased intentionally revoking it.
You can oppose that order being made if you believe the Will was destroyed by the deceased intentionally revoking it.
Although small issues such as paperclip marks, a Will that has been re-stapled or small imperfections can be easily explained, they will need to be explained in detail before a grant of Probate is issued.
Additional marks made by the deceased on the Will after it had been signed may require an order from the Supreme Court to allow the grant to be made.
Damage to the Will may be so great that the Supreme Court will assume that it was intended to be revoked by the deceased. Evidence will be required to rebut that presumption and obtain a grant of Probate on that Will.
A Will must be signed in accordance with the Wills Act 1936.
Signed by the deceased in the presence of 2 or more witnesses present at the same time.
Signed by the deceased in the presence of 2 or more witnesses present at the same time.
The deceased must have intended the document to constitute their Will.
If it is not complete, then questions will arise as to whether the document is a Will at all. An application to the Supreme Court may be required to obtain the grant of Probate.
A person is prohibited from being appointed your guardian if they are, in a professional or administrative capacity, directly or indirectly responsible for or involved in your medical care or treatment. You are therefore precluded from appointing your treating doctor as a guardian.
Contact us for more information
Contact us for more information
Sometimes the description, or the position of appointment, of an executor is not clear.
Legal advice is required to ensure the correct executors are obtaining the grant and on occasions, where true uncertainty exists, an application to the Supreme Court is required for advice and directions as to who may be entitled to obtain the grant of Probate.
Legal advice is required to ensure the correct executors are obtaining the grant and on occasions, where true uncertainty exists, an application to the Supreme Court is required for advice and directions as to who may be entitled to obtain the grant of Probate.
Where more than 1 executor is appointed, all are entitled to act. Unless the Will specifies it, executors do not act as a majority.
If conflict exists between named executors significant delay and financial loss may arise in addition to the additional stress it will cause.
If conflict exists between named executors significant delay and financial loss may arise in addition to the additional stress it will cause.
A sensible resolution to the conflict without the need to file Court proceedings is always preferred. Objective negotiation and third party mediation are always suggested at first instance.
If conflict continues, an application to the Supreme Court can be made seeking guidance, directions and, in some instances, orders to pass over a named executor to ensure further financial wastage does not occur to the estate.
Does the Will appoint another executor in substitution to the now deceased executor?
Is another grant of Probate required for the substituted or subsequently named executor?
If the Will permits another executor in substitution the incapacitated executor may be passed over and a grant of Probate made to the executor appointed in lower priority.
If the Will does not permit another executor in substitution the Supreme Court is required for another to apply for, and receive, a grant of Probate.
Would all beneficiaries agree with this action? Does the Public Trustee have to be involved?
Some Wills contain very complicated and lengthy terms such as life interests and testamentary trusts.
Executors need to ensure they not only abide by law when administering the estate but adhere strictly to the obligations and powers granted to them by the Will itself.
On occasions Wills contain clauses or terms that may be considered offensive or scandalous.
When a Will is admitted to Probate it becomes a public document and as such offensive and scandalous terms and references need to be avoided.
An application to the Supreme Court can result in such terms or words being deleted from a Will so as not to cause offence.
Some issues that arise:
+the executor nominated has since died and there is no substituted executor named;
+the testator gifts a specific bank account to someone but at the time of their death they had changed banks leading to the gift failing;
+the testator not having disposed of their entire estate leading to a partial intestacy (distribution according to legislation set out by Parliament);
+the document not being signed correctly (or at all) and not being dated correctly (or at all);
+the names of executors or beneficiaries being incomplete or incorrect leading to confusion;
+conditions being placed on certain gifts (…”X can have the car but only if he leaves that wife of his that I hate”…) which are either offensive, against public policy or impossible to meet or enforce;
+a testator wishing to gift property which they own jointly with another, that property never falls into their estate and was never capable of being gifted;
+the Will being revoked by marriage resulting in a distribution the testator did not want.
+the executor nominated has since died and there is no substituted executor named;
+the testator gifts a specific bank account to someone but at the time of their death they had changed banks leading to the gift failing;
+the testator not having disposed of their entire estate leading to a partial intestacy (distribution according to legislation set out by Parliament);
+the document not being signed correctly (or at all) and not being dated correctly (or at all);
+the names of executors or beneficiaries being incomplete or incorrect leading to confusion;
+conditions being placed on certain gifts (…”X can have the car but only if he leaves that wife of his that I hate”…) which are either offensive, against public policy or impossible to meet or enforce;
+a testator wishing to gift property which they own jointly with another, that property never falls into their estate and was never capable of being gifted;
+the Will being revoked by marriage resulting in a distribution the testator did not want.
Sometimes a grant is required quickly. Certain applications can be made to obtain a limited grant of Probate.
Perhaps the deceased entered into a contract for sale of property and died before settlement, legally the contract is enforceable and if settlement does not occur the estate may be sued for losses that result.
An urgent grant of Probate may be obtained to allow the sale to occur, but no more.
Perhaps the deceased entered into a contract for sale of property and died before settlement, legally the contract is enforceable and if settlement does not occur the estate may be sued for losses that result.
An urgent grant of Probate may be obtained to allow the sale to occur, but no more.
Perhaps an asset is of such a nature that it may perish or loose substantial value if not sold or dealt with immediately. An urgent grant of Probate may be obtained to allow the sale or disposition of that asset which will ultimately benefit the beneficiaries of the estate.
Whether a grant of Probate is necessary will depend on the nature and extent of the assets of the estate. For example, a bank holding money belonging to the deceased will need to know who it should be paid to. The grant is proof that the person named (executor or administrator) is the person entitled to collect the money on behalf of the estate.
A grant of Probate will be required if the deceased owned a house in their own name or held an interest with another party as tenant in common. Real estate owned by the deceased as a joint tenant with another person cannot, and will not, form part of the deceased estate.
If there are minimal funds in a bank account and no other significant assets it is possible to administer the estate without a grant of Probate.
The executors nominated in the Will are still acting in that capacity but some expense and delay can be saved.
The executors nominated in the Will are still acting in that capacity but some expense and delay can be saved.
