If you are a real estate agent, vendor or purchaser with a real estate contract subject to the granting of probate, you might need to prepare yourself for a bit of a wait.
The South Australian government has temporarily frozen new probate applications, to enable them to transition from paper processes to a digital system.
This transition means that from Monday 15 October 2018 to Monday 26 November, the Probate Registry will not be accepting any new applications. This is the result of the processing of all Wills in South Australia being put on hold, as courts move to a new and purely online system.
The new system will be ready and online by Monday 26 November, and from that date, all probate applications will need to be lodged by Solicitors electronically through CourtSA.
During this period of temporary freeze, the Probate Registry will continue to process existing paper applications that were received by COB on Friday 12 October 2018. All new probate applications will need to wait until 26 November before they can be filed.
Probate is the process of a Court validating a deceased person’s Will. Not all deceased estates require a grant of probate, however when real estate is involved, whether it be residential property, land or commercial property, probate is required to prove that the executor or administrator are authorised to administer the deceased person’s estate before the assets can be released.
This means that executors can still list a property for sale without probate, but settlement of the property will not be able to take place until probate is granted. The Lands Title Office (LTO) require probate to be granted before transferring the assets of a deceased person to the executor or at the direction of the executor.
In South Australia, the probate process can already take some weeks, and in our experience it can even take up to four months, but this closure of the registry will mean that families of the deceased are set to wait even longer.
This hold on probate applications will not just impact families of deceased people who own property. The entire process of accessing a deceased family member’s estate will be on hold until the new system is up and running and their probate application eventually granted, meaning some people might be in for a lengthy wait.
What does this mean for deceased estate sales in the interim?
There will be a longer wait for probate to be granted and this can’t be avoided unfortunately.
Where a sale of a property is subject to probate being granted, the dates included in the contract for this will need to be extended. It would be advisable for real estate agents to speak to the estate Solicitor before completing the contract to ascertain a realistic date whereby probate is to be granted.
Vendors and purchasers will need to be patient where there is a probate involved in a property being sold, it will just take longer before settlement can be completed.
What does this all mean for the long term?
The good news is that once in full flight, the new electronic probate application system is expected to result in faster and more efficient processes. As mentioned, currently probate can take numerous weeks and even months, however, according to South Australian Chief Justice, Chris Kourakis, it is expected that by March 2019 the processing time will be significantly reduced to within a few days.
We invite you to contact the team at the Eckermann Group if you’d like to discuss these changes to probate applications or if you require any further assistance.
