What is Probate?
Probate is the legal name given to the process of applying to a Court to prove a deceased person’s Will. It is a legal process that occurs after someone dies, involving the validation of their Will, the administration of their estate, and the distribution of their assets according to the Will or, if there is no Will, according to the laws of intestacy. A simple way to define probate would be to say that it is legal proof that a Will is valid and an Executor or Executors are allowed to deal on behalf of an estate.
The proof is a Court Order from the Supreme Court called a “Grant of Probate” which government bodies, banks and other organisations usually require to release funds or deal with someone on behalf of a deceased estate.
The process starts with the executor, named in the Will, filing a petition with the probate court. If the Will is deemed valid, the court formally appoints the executor, granting them the authority to settle the deceased person’s estate. This includes collecting assets, paying debts and taxes, and distributing the remaining assets to the beneficiaries. Probate ensures that the deceased’s wishes are followed, and that the estate is settled lawfully and efficiently. While it can be time-consuming and complex, probate provides a structured way to manage and distribute an estate, protecting the interests of all parties involved.
What is a Letter of Administration?
A Letter of Administration is a legal document issued by a court that allows an individual, usually a close relative, to administer the estate of a deceased person who did not leave a Will (meaning they died “intestate”). This document grants the administrator the authority to manage and distribute the deceased’s assets according to the rules of intestacy. The process to obtain a Letter of Administration is similar to that of obtaining probate, but it is required when there is no valid Will or if the executor named in the Will is unable or unwilling to act. The administrator must identify and value the deceased’s assets, pay off any debts, and distribute the remaining assets to the rightful beneficiaries. This process ensures that the estate is settled according to the law and that the deceased’s financial affairs are properly managed and closed.
How to Apply for a Probate?
- Determine the Need for Probate: Not all estates require probate and this depends on the type and value of assets held. Check if the estate qualifies for a simpler process.
- Gather Necessary Documents: Collect the original Will, death certificate, and other relevant documents.
- File an application: Submit an application for probate to the court, along with the necessary supporting documents.
- Notify Interested Parties: Inform beneficiaries, heirs, and creditors about the probate proceedings.
- Inventory and Appraise Assets: List and value all assets of the estate.
- Pay Debts and Taxes: Settle any outstanding debts and taxes owed by the estate.
- Distribute Assets: After settling debts, distribute the remaining assets according to the Will or intestacy laws.
- Close the Estate: File final documents with the court to officially close the process.
How Our Adelaide Probate Lawyers Can Help You – Probate Consultants
Navigating the probate process can be complex and stressful, especially during a time of loss. Our experienced probate consultants are here to guide you through every step, ensuring that the process is handled efficiently and in compliance with legal requirements. We can help you determine if probate is necessary, gather and prepare the required documents, and file the necessary documents with the court. Our team will also assist in notifying interested parties, managing and appraising estate assets, paying off debts and taxes, and distributing the remaining assets to the beneficiaries. By working with our skilled probate consultants, you can have peace of mind knowing that the estate is being managed professionally and that your loved one’s wishes are being honoured. Let us take the burden off your shoulders and handle the legal complexities so you can focus on what matters most.
Contact our Lawyers today
Our probate lawyers are Adelaide and Mount Gambier based, and available for appointment at Glenelg, Victor Harbor, Mount Barker and Gilles Plains, contact Eckermann Lawyers today. Ready to get started? Schedule a consultation with one of our expert probate consultants today. Call us on 8366 7900 or fill out our online form and one of our probate lawyers will contact you.
- Director
Rachel Sprod
- Legal Practitioner Director
Danny Nemer
Frequently asked questions
Is it necessary to advertise a Grant of Probate?
In many jurisdictions, it is necessary to advertise a Grant of Probate. This advertisement serves as a public notice to creditors and other interested parties, allowing them to come forward with any claims against the estate before it is distributed. The advertisement typically needs to be placed in a local newspaper or an official government publication.
Who can apply for Probate of a Will?
The executor named in the Will is typically the one who applies for probate. If the named executor is unable or unwilling to act, or if there is no Will, an eligible person, such as a close relative, can apply to the court to be appointed as the administrator of the estate.
Can I contest a Will after Probate has been granted?
Yes, it is possible to contest a will after probate has been granted, but it can be more challenging. Grounds for contesting a Will include concerns about the validity of the Will, such as allegations of undue influence, lack of testamentary capacity, or improper execution. Legal advice should be sought promptly if you wish to contest a Will.
When is probate required?
Probate is required when the deceased owns assets solely in their name or if the total value of the estate exceeds a certain threshold set by state law. It is also necessary if there are disputes among the beneficiaries or if the Will is contested.
When is probate not required?
If an estate does not contain real estate or if the estate assets are only modest in value, you may be able to deal with the estate without probate. For example, banks have their own policies as to what amounts they may release without a grant of probate. A common example of when probate is not usually required is where a deceased person held all their assets jointly with their surviving spouse.
A probate lawyer can assist you through obtaining probate for a Will and make the difficult process a lot smoother and easier in an already difficult time. The Supreme Court Probate Rules 2004 (“Probate Rules SA”) sets out the rules for making an application for probate.
How long will probate take?
The time taken for Probate in South Australia can depend on the complexity of the Will and the estate, whether all information required is readily available, and finally the time taken for the Probate Registry to process the application which may be dependent on workload.
How Much Does Probate Cost in South Australia?
The cost of probate in South Australia can vary based on several factors, including the value of the estate and the complexity of the case. Costs may include court fees, legal fees, and other administrative expenses. It is advisable to consult with an Adelaide probate lawyer to get a clearer estimate of the costs involved.
When are the Assets Distributed?
Assets are distributed after the probate process is completed, which includes validating the Will, paying off any debts and taxes, and resolving any disputes. Once these steps are completed, the executor or administrator can distribute the remaining assets to the beneficiaries according to the Will or the laws of intestacy.
