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Home | Deceased Estates & Disputes | Probate & Letters of Administration

What is Probate and Administration?

When a person passes away, the executor or administrator of the estate is often require to obtain what is known as a grant of probate or letters of administration.

This is the formal process of proving the will (if there is one) and making sure the executor of administrator is willing and able to take on their role. It also requires the executor or administrator to declare all assets and liabilities of the estate to the Court.

To apply for a grant of probate or letters of administration, various legal documents need to be prepared and then filed at the Probate Registry of the Supreme Court, along with a Court filing fee. There are very strict rules and requirements for these documents, so it is wise to seek the specialist advice of a wills and estates solicitor. Our solicitors can assist you throughout the legal process and will keep you informed along the way.

FAQ

What is probate?

What is probate?

Probate is the process of formally proving the validity of a deceased person’s will in the Supreme Court of South Australia.

The Court is required to make sure that the deceased person’s will is their true and lawful last will. The Court also has to confirm that the executor or executors named in the will are willing and able to act. If the Court is happy with the will and the executors, then it will produce a legal document known as the 'grant of probate'.

What information is required for getting probate/letters of administration?

What information is required for getting probate/letters of administration?

To prepare for an application for probate or letters of administration, various documents need to be completed. These documents can be very complex and detailed. The executor or administrator will need to have information about the deceased person’s:

  • last and recent places of residence;
  • last occupation;
  • family and relatives;
  • assets and liabilities;
  • date and location of death.

The executor or administrator will also need to have located the original will. Executors and administrators usually see a lawyer to prepare the probate or letters of administration application on their behalf.

Legal fees are then paid from the deceased person’s estate. Please consult us if you would like assistance to obtain a grant of probate or letters of administration.

What if someone dies without a will?

What if someone dies without a will?

A person who dies without a valid Will is said to have died ‘intestate’.

The law specifies who may act as the deceased person's legal representative and who will inherit if a person dies without a valid will.

If there is no Will appointing an executor who is willing and able to act, then usually a member of the family will need to be appointed by the Supreme Court to be the ‘administrator’. To be appointed, such person needs to apply to the Court for a grant of letters of administration.

Obtaining a grant of letters of administration is similar to obtaining a grant of probate.

Once letters of administration is granted, the administrator is then able to call in the deceased person's assets and otherwise act as the deceased person's legal representative.

What is letters of administration?

What is letters of administration?

Letters of administration is similar to a grant of probate. It is the grant required when there is no Will or when there is a will but it does not appoint an executor who is willing and able to act or it does not dispose of all of the deceased person's estate.

Letters of administration can be granted with or without the will annexed (ie. attached), and can be granted for general, special or limited purposes.

What is the purpose of probate/letters of administration?

What is the purpose of probate/letters of administration?

A grant of probate or letters of administration gives the executor or administrator lawful authority to deal with the deceased person's assets.

Often without a grant of probate or letters of administration, the deceased person's assets cannot be called in, sold or transferred. 

The grant of probate or letters of administration also provides businesses with protection and assurance that the executor or administrator is authorised by the Court to deal with the deceased person's assets.

When is Probate/Letters of Administration required?

When is Probate/Letters of Administration required?

Whether or not a grant is required, be it a grant of Probate or Letters of Administration, depends on the value and nature of the deceased person’s assets.

If the deceased person owned real estate in their sole name or owned a specific share of real estate (which is said to be held as ‘tenants in common’) then a grant will be required. This is because a deceased person’s real estate cannot be transferred to a beneficiary or sold without a grant.

Banks and other businesses or institutions where assets are held often request a copy of the grant of Probate or Letters of Administration before they release the assets to the executor or administrator. This is particularly where the value of the asset is above approximately $20,000. All banks, share registries and other institutions have different requirements, and will usually tell you whether or not a grant is required.

Aged care facilities and superannuation funds, especially if the superannuation is going to be paid to the estate, often require a grant as well.

There is no specific value of an estate that indicates when a grant is required.

How long does probate/letters of administration take?

How long does probate/letters of administration take?

The length of time to gather information necessary to apply for a grant of probate or letters of administration and the length of time for the Court to issue the grant can vary widely.

On average, a straightforward grant of probate or letters of administration will take about two months from the date it is filed in Court to the date it is issued by the Court.

However, a lot of information and careful preparation of documents is required before the documents can be filed in Court. Obtaining this information often requires writing to banks and other institutions such as share registries, aged care facilities or superannuation funds, and their replies can sometimes takes weeks.

A grant of probate or letters of administration cannot be obtained within 28 days of the date of death, unless there are urgent reasons.

Once a grant of probate or letters of administration is issued, the assets will need to be called in and then debts paid. This can also take time. If there are persons entitled to make a claim on the estate, it is usually recommended that the estate not be distributed within six months of the grant of probate or letters of administration. See 'Estate Administration' for more information.

For a straightforward estate (ie. with no legal issues arising or potential claimants), the whole process of finalising an estate (including obtaining the grant and administering the estate) may take four to six months. Very complex matters can sometimes take years.

How much does it cost?

How much does it cost?

There are two aspects when considering the costs of obtaining a grant of Probate or Letters of Administration. The first part is the fees to instruct a lawyer, if you so choose, and the second part is the Court fee.

When an application for a grant of Probate or Letters of Administration is filed in Court a Court fee must also be paid. The amount payable depends on the gross value of the estate (ie. the value of the assets before any debts are paid) and is between $750 and $3,000.

Reasonable legal expenses, including Court fees, are payable from the estate and are usually deducted from the estate towards the finalisation of the matter.

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