What is Probate?
‘Probate’ is short for ‘Grant of Probate’, a certificate from the Supreme Court of South Australia.
This certificate certifies a Will as the Last Will and Testament of a deceased individual. Once certified, the Will can then authorise an Executor(s) to deal with the assets of the Estate as instructed in the will.
Probate is not always necessary, particularly if the Estate is small and/or all of the deceased’s property was held jointly with a spouse/partner. However if the deceased owned real estate in his/her sole name, Probate will be needed in order to sell or transfer the property.
If there is no solely owned property, then the necessity of Probate will be decided by the institutions holding the remaining Estate of the deceased – funds, shares or other assets. Probate is normally required in South Australia for assets of $15,000 – $30,000 or higher. Probate must also be obtained separately for every Australian state in which there is real property.
If someone dies without a Will (or ‘intestate’), then the would-be executor may need to apply to the Supreme Court for Letters of Administration in order to manage the Estate. They are then called an Administrator, rather than an Executor, reflecting the fact that they have not been specifically appointed in a Will.
How to Obtain Probate
In order to obtain a Grant of Probate, an application must be made to the Supreme Court of South Australia. Some Executors apply themselves with assistance from the Probate Registry, however the application is quite complex and most Executors will engage a lawyer to prepare or at least assist with preparing the application. Any solicitor is able to apply for Probate or provide you assistance with its application – this role is not exclusive to the solicitor that drafted the original Will.
There will be a filing fee of between $780.00 and $3,187.00 payable to the Supreme Court of South Australia. As at 1 January 2017, the filing fee is calculated as follows:-
For an estate with a total value of $200,000 or less – $797.00;
For an estate with a total value of $201,000 to $500,000 – $1,594.00;
For an estate with a total value of $500,001 to $1 million – $2,125.00; or
For an estate with a total value of over $1 million – $3,187.00
If a solicitor’s services are engaged, there will also be legal fees. All of these fees are payable by the Estate, and not by the Executor personally.
The Executor’s role is often extensive, and they may need to seek professional help as they carry out their duties. Lawyers are often engaged to assist with Probate applications, disputes or other legal issues. If legal advice is needed, it does not have to be from the same lawyer who drafted the will.
It can take up to two months or even longer for Probate to be granted. It is also not uncommon for additional information to be requested, or for the application to be sent back with a request for amendment (“Requisitions”).
As an Executor, applying for Probate can be an intimidating prospect. If you need assistance with your application or would prefer a solicitor to take care of it on your behalf, Katrina can help you make the process straightforward and hassle-free.
In most cases, Katrina will charge a fixed fee to apply for a Grant of Probate or Letters of Administration. Please contact us to obtain a copy of our Probate Fee Schedule.