Dealing with the loss of a loved one brings not only emotional challenges but also legal processes that can appear overwhelming. In South Australia, one such process is probate, a crucial step in settling a deceased’s estate. Whether you are the executor dealing with responsibilities or simply trying to understand probate, having the right knowledge about the process is essential. At KD & Co Lawyers, we often get asked by our client's what probate is and when it is needed. This blog aims to provide a clear explanation of the probate process, estate administration, and potential difficulties that may arise in Adelaide and surrounding areas.
What is Probate in South Australia?
In South Australia, probate is governed by the Administration and Probate Act 1919 (SA). Simply put, probate is the legal process of validating a person’s Will after their passing, settling their debts, and distributing their assets to the beneficiaries in accordance with their Will. This means the Probate Registry of the Supreme Court of South Australia must validate the authenticity of the Will, confirming that it truly represents the deceased’s final wishes. Once this is established, a Grant of Probate is issued, allowing the executor to commence their duties of estate administration.
Estate Administration
Once probate has been granted, the responsibility of managing the deceased’s estate falls to the executor. Estate administration, while essential, can indeed become intricate, particularly when trying to determine what assets form part of the estate. Usually, the executor of an estate is a close relative or friend of the deceased and is aware of the various assets held in their name. However, if an executor is unaware of the location of such assets, or if the Public Trustee is acting as executor, the executor will be required to review personal documentation of the deceased in an attempt to collate all their assets. Once all assets have been identified, the executor must distribute such assets to the beneficiaries in accordance with the Will.
Difficulties in Obtaining Probate
However, challenges can emerge when seeking to obtain a grant of probate in certain situations in South Australia.
Letters of Administration
In the event that an executor of a Will has passed away, another trusted person of the deceased, whether a relative or friend, is able to apply for Letters of Administration. This refers to an application that is lodged by one or more people to be the administrator of an estate. Usually, the most suitable candidates are the spouse of the deceased or their children.
A Grant of Letters of Administration allows a Court-appointed Administrator to deal with the estate in the same way an executor would be able to. This involves the same process of settling debts and administering the estate in accordance with the deceased’s Will. Applying for Letters of Administration is likely to be more time-consuming and costly than applying for a Grant of Probate, as it requires further information to be provided to the Court. This is why it is crucial to seek expert legal advice on your Will, which can include ensuring that you name more than one Executor, to avoid your estate being subject to a Grant of Letters of Administration.
Damage to the Original Will
When applying for a Grant of Probate, the Original Will is lodged with the Probate Registry, and therefore, the physical condition of the Will is imperative. However, difficulties may arise if there is physical damage to the Original Will. This refers to (but is not limited to) any paperclip marks, extra staples, staples removed, or any bends/tears to the Original Will itself. Such damage would force the Probate Registry to question the validity of the Will and often requires further documentation, such as Affidavits from the initial Will drafters and/or the witnesses.
Legal Advice at KD & Co Lawyers
Here at KD & Co Lawyers, we want you to know that the Wills we draw for our clients in Adelaide include specific clauses that explain the different powers Executors have. This way, Executors understand what they need to do, and they can always look back at the Will, if need be, during estate administration.
We understand that applying for a Grant of Probate or Letters of Administration involves a tedious process that requires careful attention to detail and consideration. These processes come with Court filing fees, and the amount depends on the size of the deceased’s estate.
At KD & Co Lawyers, we are here to assist you through this emotional journey and to alleviate any unnecessary stresses in South Australia. If you need assistance with probate in South Australia, don't hesitate to contact our expert team at KD & Co Lawyers at (08) 7084 3060, or schedule an appointment to discuss with our team.