Introduction | Need for a grant | Applications for grants | Glossary
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APPLICATIONS
FOR GRANTS OF PROBATE OR ADMINISTRATION
Effective
1 July 2010
The Supreme Court of South
Australia is the Court that has exclusive jurisdiction in this State to make
orders in relation to the validity of a will of a deceased person, the
appointment of an executor or an administrator and the administration of a
deceased estate.
The Probate Registry is the
Registry of the Court that deals with applications for grants of probate or
administration and other related matters. The Probate Registry keeps a register
of probates and administrations granted by the Court.
On application for a grant the
Court determines what document or documents constitute the last will of the
deceased and / or who is entitled to be the personal representative of the
deceased (i.e. the executor or administrator).
When these determinations have been made a grant is issued in respect of
the estate of the deceased person.
There are three types of grants
- probate, letters of administration with the will annexed and letters of
administration. When necessary a
grant will be limited in duration, in respect of property or to any special
purpose. The term “grant” is
used to mean whatever type of grant is issued.
A grant is the official recognition by the Court of the right of the
personal representative named in the grant to administer the estate of a
deceased person and of the vesting in the personal representative of the title
to the deceased’s estate.
The Court does not decide
whether or not a grant is required. That
depends on the nature and extent of the assets to be administered and the
requirements of the institutions holding the assets.
The applicant must address this
before seeking a grant from the Court.
Many estates may be administered
informally, without a grant. For this reason the person undertaking the administration of the
estate should first inquire from each institution holding an asset belonging to
the deceased whether the institution is prepared to release the asset without
seeing a grant. For example, banks
and insurance companies may release money without a grant if the amount is small
and there are no complications. However,
conditions may be imposed.
A grant will not
be required when the only assets are held by joint tenants. For example, real
estate in the names of husband and wife as joint tenants becomes the
property of the survivor by operation of law and requires only the registration
of the death on the title.
On the other hand, a grant will
always be required if the deceased owned real estate in his or her own name or held an interest in real estate with another party as tenant
in common. The Lands Titles Registration Office will not process a transfer
of the deceased’s interest to another person without a grant.
If there is a requirement for a
personal representative to prove his or her title to an asset in the
deceased’s name it might be necessary to obtain a grant.
A bank, insurance company, share
registry or other institution may require a grant before it will allow a
personal representative to deal with a substantial estate asset.
The distribution of the assets
in the deceased’s estate is the responsibility of the person named in the
grant and the grant is proof that the person named in it is entitled to collect
and distribute the estate of the deceased.
Applications for grants – options available
All applications for grants must
be in accordance with the Rules of Court. Those Rules govern who is entitled to
claim the grant and the manner in which the application must be made.
Option
1. - Prepare the documents necessary to make the application
personally.
Some guidance and a word of warning
A
personal application is likely to be far more onerous than your friends and
family will tell you.
Making an
application for a grant is not simply a matter of filling in forms and paying
the fee.
In
particular, the person or persons applying for a grant should be aware that:
Ø
The Rules of the Court preclude Probate Registry staff from
giving legal advice;
Ø
Documents leading to the grant require various undertakings
to the Court;
Ø
The correct administration of a deceased estate may involve
the application of technical legal rules;
Ø
Applying for probate and administering an estate are
technical processes that require an understanding of the law and both Court
practice and Court procedure.
Ø
There may be taxation consequences and responsibilities
arising from the administration of the trust estate;
Ø
An executor or administrator may be personally liable for
both breach of trust and damages arising from negligence.
The
administration of a deceased estate should not be undertaken lightly.
If
you have any doubt about your legal position and responsibilities, you should
obtain legal advice from a solicitor who specialises in probate work.
The
Law Society of South Australia,
Before
proceeding with a personal application, it is also worth considering the
following:
Ø
The Probate Registry does not endorse any of
the “do it yourself probate kits” available on the internet.
In particular, because the procedures vary from State to State, probate
kits offered by sources outside of
Ø
A “typing only” service may cost more than having a
solicitor prepare the application and lodge it on your behalf.
Ø
If you decide to do a personal application, then you will
need to attend to any requisitions raised by the examining officers.
If
a requisition is raised, you should not telephone or attend at the Registry
seeking advice. Rule 7.09 of The
Probate Rules directs that no legal advice be given to a personal applicant by
any officer of the Court.
Ø
If a solicitor makes the application on your behalf, you will
not have to attend at the Registry.
Certain
problems or deficiencies with a will are likely to cause difficulties.
Difficulties
that are frequently encountered include:
Ø
Paper clip marks or additional staple holes in the will.
Ø
A signature of the person who made the will where the
signature is not clear or which suggests frailty.
Ø
A signature of the person who made the will where the surname
or initials differ from the name at the head of the will.
Ø
The absence of a date to the will.
Ø
The date of the will being obscured, incomplete or altered.
Ø
The use by the person who made the will and the witnesses to
the will of different pens thereby raising doubt as to whether they were all
present together when the will was executed.
Ø
Any unsigned alteration to the text of the will.
These
difficulties require the applicant to submit one or more additional affidavits
in support of the application. The
preparation of the additional affidavits may involve technical research and is
likely to take considerable time. If
the application is made by a personal applicant, such affidavits must be sworn
in the Registry.
Addresses
within an oath, affirmation or affidavit should use the description “
Postcodes
should not be included in the text of documents.
Postcodes should be included only on the backsheet as part of the address
for service of notices.
Option
2. - Instruct a solicitor of your choice to make the application
on your behalf.
The
Law Society of South Australia,
Option
3. - Request the Public Trustee or any one of the Trustee
Companies (being a company authorised under the Trustee Companies Act, 1988) to
act as an executor or administrator of the deceased estate.
IN ANY EVENT
DO NOT
remove staples or binding etc. from the will in order to photocopy the will AND
DO NOT attach anything to the will by way of a pin, glider clip or staple. Holes
caused by removal of staples and indents from glider clips or the like must be
explained by affidavit.
Do not laminate the will, the
death certificate or any other document relating to the probate application.
--------------------------------------------------
If
it is decided to lodge a personal application then the applicant must be aware
of the practice and procedure:
A. General
Ø
Officers of the Probate Registry are not permitted to
give legal advice or assist in the completion of forms or pre-examine documents
prior to the lodgement or recommend a particular legal practitioner.
Ø
The
application must be prepared in accordance with “The
Probate Rules 2004”. Rule
7 specifically deals with Personal Applications. The
application must not be signed at the time of lodgement at the Registry.
Ø
A
personal applicant must attend in person in the Probate Registry to lodge an
application for a grant.
Ø
Personal applications will be received only between 9.30am
and 10.30am, on business days.
Ø
Personal
applications by post will not be accepted.
A
personal application will not be received through an agent nor may a personal
applicant be attended by a person acting or appearing to act as the
applicant’s adviser.
Ø
The
Probate Rules and the Forms required to make an application are not available
from the Probate Registry but
can be purchased or downloaded as follows:
v
“The
Probate Rules 2004”
may be purchased at the EDS Building (Service SA Counter)
- www.service.sa.gov.au),
Ground Floor, 108 North Terrace,
OR
v
Visit our website (http://www.courts.sa.gov.au
- Link “For Lawyers and Unrepresented Parties” then “Rules & Forms”)
where access may be gained to “The Probate Rules 2004” along with further
information about the Courts.
It
is suggested the RTF format be selected.
Ø
In
due course,
after the application has been examined and found to be in order (see below),
the applicant will be required to attend at the Probate Registry again
to execute the documents, either under oath or by affirmation, before a
Registrar or designated officer.
B. Documents required
Ø
The original Will and the original
Death Certificate must be lodged with the application. These documents or
any other documents required in support of the application are retained by the
Court and will not be returned to the applicant.
Ø
The
documentation to be prepared by the applicant for:
v
PROBATE
Form
39
Draft Probate with attached back sheet
Form
40
Executor’s Oath with attached back sheet
Form
68
Affidavit of Assets and Liabilities together with the Statement marked
“A” (see notes and the example Statement in Form 68) and
attached back sheet. Note that Form
68 is used only if the date of death occurred after the 1st July
1987.
Form
70
Registrar’s Certificates may be required in relation to some assets.
The provision of a Registrar’s Certificate is optional but it is likely
to facilitate the administration. A
separate certificate is required for each asset. No
back sheet is required for these certificates.
v
LETTERS OF ADMINISTRATION WITH A WILL
Form
47
Draft grant of Letters of Administration with a will with attached back
sheet
Form
48
Administrator’s Oath with attached back sheet
Form
55
Sureties Guarantee with attached back sheet
Form
5
Affidavit of justification of sureties with attached back sheet
If widow/er applying, then only one surety
is required
If not widow/er of deceased then two
sureties are required.
Form
68
Affidavit of Assets and Liabilities (as described above) with attached
back sheet
Form
70
Registrar’s Certificates – no back sheet
v
LETTERS OF ADMINISTRATION - (if no will)
Form
51
Draft grant of Letters of Administration with attached back sheet
Form
52
Administrator’s Oath with attached back sheet
Form
55
Sureties Guarantee with attached back sheet
Form
5
Affidavit of justification of sureties with attached back sheet
If widow/er applying then only one surety is
required.
If not widow/er of deceased then two
sureties are required.
Form
68
Affidavit of Assets and Liabilities (as described above) with attached
back sheet
Form
70
Registrar’s Certificates – no back sheet
Ø
The
circumstances of the matter may require the provision of additional evidence -
see Rules 17 to 27. Any additional
affidavits must have a back sheet attached.
C. Document preparation
Ø
All
documents must be in black type on International A4 size good quality paper with
a 4cm left hand margin, double line spacing and lodged with back sheets
correctly intituled for the estate (see an example of a back sheet below).
Unlike all the other documents, the statement of assets and liabilities
will be accepted in one and a half rather than double spacing.
Ø
A copy
of the statement of assets and liabilities is annexed to the Affidavit of Assets
and Liabilities. The statement has
the letter “A” at the top of the first page to enable it to be identified as
the annexure referred to in the Affidavit. The
page with the letter “A” at the top is the first page and subsequent pages
should be numbered “2, 3, etc.”
Ø
The full
given name and the current residential address of each applicant must be
stated in full. Postal
abbreviations, postal addresses and postcodes should not be used in an oath,
affirmation or affidavit - Refer Rule 13 (Probate) and Rule 14 (Administration).
Ø
The
practice of the Court is that a physical address for service within 50
kilometres of the Adelaide GPO must appear on the back sheet to each document
– see Rule
59.03.
D. Document Lodgement
Ø
Personal applicants must attend at the Supreme Court Registry
between 9.30am and 10.30am, on business days.
Appointments for a specific time or day are not available.
Ø
Personal
applicants present at the Probate Registry and submit the proposed application
to an examining officer who makes an initial assessment of the application.
Ø
If
the application is incomplete or does not comply with the Rules, then it will
not be accepted.
The examining officer will return
the documents to the applicant for further consideration. There
is then no need for the applicant to remain in the Registry. The
application must be put in order before being submitted again.
Ø
If the
application appears to be complete and satisfactory, it will be received.
The applicant will then be required to produce evidence of his or her
identity and to pay the Court fee.
Ø
The
Registrar does not examine the application at this time. The
assessment establishes only that the application may be received.
Ø Once the Court fee has been paid the application is queued for examination with the applications lodged by lawyers.
E. Examination of the
application
Ø
Once the
application has been examined the applicant will be contacted by letter and:
v
If the
application is in order, the applicant will be requested to attend in the
Probate Registry to swear or affirm the application one of the examining
officers.
OR
v
If the
application is not in order, the applicant will be notified of the matters
requiring further attention before the application can proceed.
Ø
On
issue, the grant is posted by registered mail to the applicant at the address
appearing on the back sheet to the application documents unless arrangements are
made by the applicant to collect the grant from the Registry. The
applicant should make this arrangement at the time he or she attends in the
Registry to sign the application.
F. Court Fee
payable
Ø
On
acceptance of the application the Court fee is payable. View
current Court fees.
Ø The Court fee may be paid by personal cheque, money order, cash or credit card.
EXAMPLE
OF A BACKSHEET Preparation
notes below (in italics):
This document should be aligned to the right
IN THE SUPREME COURT
TESTAMENTARY CAUSES JURISDICTION
v
Type in the name of the deceased
In
the estate of
JOHN CITIZEN
Deceased
v
Type in the name of the document here DRAFT PROBATE
e.g.
DRAFT PROBATE
EXECUTOR’S OATH or
AFFIDAVIT
OF ASSETS
AND LIABILITIES
v
Enter the name, address & phone number of applicant
(show details of one applicant only and delete
either “executor” or
“administrator”)
THE
EXECUTOR/ADMINISTRATOR
MARY CITIZEN
1 Smith Street
ADELAIDE
SA 5000
Telephone
: #
ADMINISTRATION:
This is the process of collecting the assets, paying the debts and
distributing the balance of a deceased’s estate according to the will of a
deceased person. If there is no
will, or the will does not dispose of the deceased’s estate in whole or in
part, then the undisposed of estate is distributed in accordance with the rules
of intestacy.
ADMINSTRATOR:
a person appointed by the Court to administer the estate of a deceased
person when a person dies intestate, or when an executor is not appointed by
will, or when the executor does not or cannot act.
EXECUTOR:
a person appointed by will to administer the estate of a deceased person.
GRANT OF REPRESENTATION (“GRANT”):
a certificate issued under seal by the Court appointing an administrator,
or authenticating the right of an executor, to administer the estate of a
deceased person and vesting title to assets in the executor or the
administrator.
INTESTATE: a person
dying without a will or a valid will. A
person is said to die partially intestate when a will does not dispose of the
whole of the deceased’s assets. For
example, the will may only appoint an executor or dispose of part only of the
deceased’s assets; see administration.
LETTERS OF ADMINISTRATION:
a grant by the Court appointing an administrator to administer the estate
of a deceased person.
LETTERS OF ADMINISTRATION WITH THE WILL ANNEXED:
a grant by the Court appointing an administrator when there is a will but
no executor or when the executor does not or cannot act.
PROBATE: a grant by the
Court certifying that the deceased’s will is valid or “proved” and that
authority to administer the estate has been granted to the executor.
PERSONAL REPRESENTATIVE:
an executor or administrator.
PERSONAL APPLICANT: a person
who seeks to obtain a grant without the intervention of a practitioner.
WILL: a document whereby a testator disposes of the testator’s property on death and usually appointing an executor to administer the estate.
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