When someone dies, you will often hear people refer to the need to obtain ‘probate’. Of course, whilst it is a topic many of us would prefer not to discuss, it is important that you have some understanding of this area. But what is probate? What does it do? And is it really a requirement? In this article, we will address these questions.
What is probate?
A grant of probate is essentially a ‘certificate’ granted by the Supreme Court. It certifies that a deceased’s will has been proved as valid. It is used as authority by executors to allow them to freely administer, collect and protect the deceased’s estate.
Different types of probate
Probate may be granted in either solemn form or in common form.
A grant in common form is made when the validity of the will is not contested. It is granted by the Registrar of the Supreme Court, and does not require any oral evidence. It is done by an application for probate and other verifying documents.
If the executor has some doubt as to the validity of the will, or thinks that it may be opposed, then the executor must seek a grant of probate in solemn form. This requires Court proceedings. The Court will hear evidence, and parties may be examined and cross-examined. A grant in solemn form has the effect of a judgement and binds all parties. This kind of probate is less common than a grant in common form.
A probate may be complicated if a person (who has a material interest in the estate) lodges a ‘caveat’ with the Supreme Court. A person would lodge a caveat if they wished to prevent the estate being dealt with in a particular way, and require that an application for probate be made in solemn form. This then forces a judicial hearing.
What happens if there is no will?
When a person dies leaving no will, they are said to have died ‘intestate’. In such cases, legislation in South Australia dictates how the deceased’s estate will be distributed. Probate is not required in these cases.
However, it may be necessary to make an application for ‘letters of administration’.
Letters of administration essentially play the same role as probate, in the sense that it grants authority to a person to distribute the estate. There are a class of people who are able to apply to be an administrator of a deceased estate, including the deceased’s immediate family. As will be described later in this article, letters of administrations will not always be required if a person dies without a will.
Probate cannot be granted any earlier than 28 days after someone dies. A grant in common form will usually be made within two to six weeks of the application being lodged. A grant in solemn form can take much longer, depending on what evidence is required by the court.
The application will usually be made by the executor or executors, and the costs covered by the estate. If the executor named in the deceased’s will fails to apply for any grant within four months of the person’s death, other interested parties can apply to act as the executor.
When probate is not necessary
In South Australia, it is sometimes unnecessary to apply for probate.
Some financial institutions will release funds from bank accounts or other investments to spouses and children without probate. Generally, this would simply require the production of the will and a death certificate.
Further, all monies in a joint account go directly to the surviving owner and do not form part of the estate. Similarly, if land owned by the deceased was held as joint tenants with another party, this land can be transferred to the surviving party with a simple application to the Lands Titles Office. No probate is required.
However, probate will be required if any land was held by the deceased not as joint tenants.
In South Australia a grant of probate is not required to change the name on the registration of a motor vehicle. All that is required is a transfer of ownership form and a declaration stating that the vehicle is being transferred in accordance with the deceased’s will.
To summarise, a grant of probate (or letters of administration) is a certificate from the Supreme Court that gives authority to the executor or administrator to deal with a person’s estate after they die. Essentially, it provides conclusive evidence to government bodies and financial institutions that the deceased has died has left a valid will, and has appointed someone to distribute their estate accordingly.
The circumstances of each case will need to be considered before an application of probate or letters of administrations is made. If the estate can be distributed without the need for probate or letters of administration, then significant costs will be saved in the process. It is therefore necessary to review the assets of the deceased’s estate, and from that determine what the best course of action is.
If you have any queries regarding probate, or you wish to discuss your particular circumstances, please contact Ben Wilson.
This article is based on the law as it applies in South Australia. It provides general comments only, and does not constitute specific legal advice. As always, you should seek specific advice in respect of your particular circumstances.