Introduction | Need for a grant | Applications for grants | Glossary
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APPLICATIONS
FOR GRANTS OF PROBATE OR ADMINISTRATION
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 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.
Whether
a grant is needed will depend on the
nature and extent of the assets to be administered. This is a matter the
applicant must address before seeking a grant from the Court.
Many
estates may be administered informally (i.e. without a grant). For this reason
the person undertaking the administration of the estate should first inquire
from anyone holding an asset belonging to the deceased whether they are prepared
to release it 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 though conditions may be imposed.
A
grant will not be required when the
assets are held as a joint tenancy.
For example, real estate in the names of husband and wife as joint
tenants automatically becomes the property of the survivor by operation of
law.
Where
there is a requirement for a personal representative to prove his or her title
to an asset in the deceased’s name it is necessary to obtain a grant.
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 that interest to another without a grant.
A
grant may be required before a bank, insurance company, share registry etc 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.
It
should be noted that where a person undertakes the administration of an estate
and does not have the right to deal with the estate, such person could be liable
to the beneficiaries.
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 a grant and the manner in which the application must be made.
If
a grant is required to administer the estate
(this is determined by the nature of the assets – not by the Court ) then the
options for the person seeking the grant are:
OPTION
1.
Instruct a solicitor of your choice to make the application on your
behalf. The Law Society of South
Australia, 124 Waymouth Street Adelaide SA, (Telephone: 8229 0222) will provide
you with the names of law firms who practise in this jurisdiction
OR
OPTION 2. 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
OR
OPTION
3.
Prepare the documents necessary to make the application personally.
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.
- ----------------------------------------------- -
If it is decided to lodge a personal application then the applicant must be aware of the practice and procedure effective from 1 July 2008:
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 between
9.00am and 10.00am Monday to Friday (inclusive).
Ø
No personal applications will
be received outside the hours of 9.00am to 10.00am.
Ø
Personal applications by post will
not be accepted.
Ø
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 in
the City at the Lands Titles Office (Service SA Counter -
www.service.sa.gov.au), 101
Grenfell Street, Adelaide, SA, Monday to Friday 9.00am – 5.00pm, Telephone 13
23 24
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 then be required to make an appointment to again attend
at the Probate Registry to execute the documents before a Registrar
either under oath or by affirmation.
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
Executors 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 only used if the date of death occurs after the 1st
July 1987.
Form
70
Registrar’s Certificates may be
required in relation to some assets. 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
Administrators 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