When Is Probate Required?

The first step is to determine whether your loved one left avalid Will and whether they died leaving assets in their sole name or as tenants in common. If your loved one passes away with a valid Will that has appointed an executor or executors to carry out the administration of the deceased’s estate, and also dies leaving assets in their sole name, in most cases the executor or executors of the estate will need to apply to the court for a ‘Grant of Probate’ in order to deal with the deceased’s assets.

What Assets Require a Grant Of Probate?

Typically, the following assets held by the deceased intheir sole name or as tenants in common, require a Grant of Probate in order to be released to the executor:

• Real estate
• Accommodation within a residential aged care facility (nursing home)
• Shares of significant value
• If the deceased was a beneficiary in a trust
• Bank accounts holding significant value

Can Assets Be Released Without A Grant Of Probate?

There are some instances where an institution may beprepared to release the asset to the executor without the requirement for a Grant of Probate. The institution, however, will typically require identification documentation along with certified copies of the death certificate and original Will.

Prior to making an application for probate, it is important to contact these institutions to seek their requirements for the release of the asset.

How To Obtain A Grant Of Probate

Obtaining a Grant of Probate involves filing an application with the Supreme Court of South Australia. You will be required to disclose all assets and liabilities of the deceased person as at the date of their passing and entering that into the application through Court SA. The filing fee varies depending on the value of the deceased estate.

Once the application has been lodged, the Probate Registry will review and assess the application and original Will. If the Probate Registry takes no issue with the application, they will issue a formal document called a ‘Grant of Probate’. The original Will is then retained by the Court and once a Will has been admitted to probate, it is a public document that is available for inspection by the public.

What Does A Grant Of Probate Do?

A Grant of Probate gives the executors authority to formally administer the estate of the deceased person by collating and dealing with assets, paying estate debts or expenses and transferring the remaining assets to the beneficiaries of the deceased’s Will.

A probate application can quickly become complex if for example, one of the executors no longer wishes to perform this duty, if the staple of the original Will has been removed, if the Will has not been signed by the deceased and witnesses correctly, or if the deceased holds assets in multiple different names.

Case Study

The deceased passed away and appointed her two daughters to jointly be executors of her Will.

One of the daughters decided she did not wish to perform herrole as executor with her sister. This daughter was required to sign a renunciation form to confirm that she renounces her role as executor and has not and will not intermeddle in the deceased’s estate.

Further, the deceased was a migrant from Europe and her nameset out in the Will and other identification documents were different to the names she held some of her assets in. In total, the deceased was known by five different names.

The institutions that held the deceased’s assets required the Grant of Probate to be issued in the deceased’s several names. To address this issue with the Court, we prepared an Affidavit as to Alias of the executor requesting that the Grant of Probate be issued in the deceased’s five different names.

The renunciation form and Affidavit as to Alias were uploaded with the probate application and lodged together at the same time.

The Probate Registry reviewed the probate application and original Will and issued the Grant of Probate to the executor.