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”
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.
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?
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.
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.
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Guardians of infant or young children…who should you appoint and should they receive financial consideration?
You can oppose that order being made if you believe the Will was destroyed by the deceased intentionally revoking it.
Signed by the deceased in the presence of 2 or more witnesses present at the same time.
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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.
If conflict exists between named executors significant delay and financial loss may arise in addition to the additional stress it will cause.
+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.
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.