Grants – frequently asked questions

The details you provide in the Assets and Liabilities section of your grant application on CourtSA will be used to produce the Statement of Assets and Liabilities and any Registrar’s Certificate of Disclosure.

You must provide a description and value of all assets and liabilities as at date of death of the deceased, including those located interstate and if the deceased died domiciled in Australia, their assets overseas. Assets include real estate, house contents, money in bank accounts, investments, motor vehicles and other possessions.

Liabilities include legal expenses, tax, mortgages or other debts existing at date of death but not funeral expenses.

Refer to Section 71 Succession Act 2023 (SA) and rule 356.17

Parties or their solicitor (if represented) can download the Statement of Assets and Liabilities once the grant has issued from their case in CourtSA.

Aged care accommodation

It is not necessary to differentiate between the different type of interests and rights to occupy. It is sufficient to identify the institution and state the amount that you have been advised will be paid to the estate.

The institution should be named in the Particulars of Provider (Name) field in the CourtSA form.

Bank or similar accounts

This covers banks, building societies and similar institutions. If the deceased had an account with any authorised deposit taking institution it can be disclosed here.

The balance to be disclosed is the balance at the date of death.

Do not disclose debit accounts (such as balances owing on credit card or overdrawn accounts) here. Disclose those as liabilities.

Cash in Hand

This refers to physical cash (notes and coins) found amongst the Deceased’s possessions at date of death. It does not include money in a bank account, or undeposited cheques, or money that is owing but not paid.

Debts due to the deceased

The description of a debt should include (if known) the following:

• Details of who owes the debt to the deceased
• If the debt was oral or written
• Date of debt
• Interest payable (if any)
• When the debt was payable/due

If the debt is due from a private company or trust the valuation should be provided by an accountant. You also need to state the name of the accountant, the accounting firm and that the valuation is based on the date of death of the deceased.

Furniture and household effects

This heading includes furniture, household effects, watches, jewellery, domestic tools, domestic appliances, clothes, books, music and the like. It does not include motor vehicles, cash or business assets.

The applicant may provide an estimate of the value of the items.

Interest in a deceased estate

The nature of interest should be described as ‘a/one of the specific or pecuniary or residuary legatee and/or devisee and/or in remainder’ (as the case may be).

The value should be that given by the Trustee of the estate.

Choses in action should be not included here – they should be listed under ‘other asset type’.

Life Insurance policies or bonuses

Disclosure is only required if the proceeds of the policy are being paid into the estate.

The amount to be entered in the “Amount/Value/Balance” panel is the total proceeds, including any bonuses.

The source of valuation which you need to enter into the “Advised by” field will usually be the insurer.

Mortgages

Do not enter the mortgage debt owed by a deceased person here – that should be done under the heading “liabilities”.

This is for cases where the deceased was the holder of a registered mortgage over someone else’s property. That other person is the “Mortgagor”.

If there is no debt owing and the only need is for a Registrar’s Certificate to enable discharge of the mortgage, see Nil value assets below.

Motor vehicles and boats

The make, model and year of manufacture (if known) should be entered into the “Vehicle make” panel for a motor vehicle or a boat.

If the vehicle is unregistered, type “Unregistered” into the “Registration Number” panel.

Nil value assets

It is necessary to disclose – and often obtain a certificate for – assets that are in the name of the deceased person but have no monetary value to the estate.

Examples include:

• a bank account where as at date of death there is a nil value but the bank requires a Registrar’s Certificate to close the asset;
• assets held in trust by the deceased for some other person;
• mortgages in respect of which nothing is owing, but remain registered; or
• shares in a company that is only a trustee

Assets held in trust by the deceased for another should be disclosed in the “Property held by the deceased as a Trustee” field. Include the face value (if any) of the asset (eg the balance of a bank account that is held in trust) in the description of the asset. That value will not be included in the calculation of the gross value of the estate but will be shown on the Registrar’s Certificate.

Other asset types

Examples of other types of assets can be found in the Notes to Form PROB46 and Practice Note 3 of 2024

You may use any description you like – but you should ensure that it will meet the needs of the person or institution who holds the asset so that they can release it to you.

For example if a contract for the sale of land was signed before the date of death, the asset should be disclosed as “Other asset type” not as real estate and a copy of the contract uploaded to your application.

Monies due under contract for sale

Date of Contract: 1 December 2024

Date of Settlement: 31 January 2025

Name of Purchaser: John Doe and/or nominee of 1 Gouger Street, Adelaide SA 5000

Description of Property: An estate in fee simple in Allotment 1 DP10234 Hundred of Adelaide and being the land comprised in Certificate of Title Register Book Volume 5555 Folio 222 situate at 1 Gouger Street, Adelaide SA 5000

Purchase Price 775,000.00

Property held by the deceased as trustee

Include, in the “Description” panel, the name of the beneficiary, the circumstances in which the trust arose and a description of the interest.

If a Registrar’s certificate with certificate of title or bank account or share details is required, such details can be added to the description.

For example:

Beneficiary: Jane Smith

BankSA account held by deceased for beneficiary

BSB: 011 444

Account Number: 9876 3456

Property held in trust for the deceased

This is not for assets held by the deceased as a trustee.

Include, in the “Description” panel, the name of the trustee, the circumstances in which the trust arose and a description of the interest.

For example:

Probate Registry Portfolio

Unique identifier: 0124354

Cash Common Fund   $100.00

Balanced SIS              $40,000.00

Amount/Value/Balanced as at date of death: $40,100.00

Valuation provided by: Probate Registry

Real estate

Volume and folio numbers

Council rates notices often show the volume and folio numbers in the format CT 1234/456, where 1234 is the volume number and 456 the folio number.

The volume and folio numbers of land can be found on the certificate of title.

Value of real estate

The value of real estate must be given by the Valuer General (from the Council rates notice) or a licenced property valuer. An executor’s estimate for real estate is not acceptable unless the executor is a licenced property valuer.

Registrar’s Certificates

What is a Registrar’s Certificate of Disclosure?

Section 71 of the Succession Act 2023 (SA) requires every Applicant for a grant of representation to disclose all assets and liabilities as at date of death of the deceased, including those located interstate and if the deceased died domiciled in Australia, their assets overseas.

The Registrar issues certificates certifying that disclosure has been made. That enables institutions such as banks, the Lands Titles Office, insurance companies, aged care facilities and share registries to comply with section 72 of the Succession Act 2023 (SA).

Section 72 provides:

“A person who deals with an asset of the estate of a deceased person that is required to be disclosed under section 71 must satisfy themself—

(a) by examination of the grant of probate or administration; or

(b) by examination of the Registrar’s certificate; or

(c) on the basis of some other reliable evidence, that the asset has in fact been so disclosed”

Do I need a certificate?

A Registrar’s certificate of disclosure is not always necessary. You may be able to deal with cash, motor vehicles, furniture and effects and some other assets without a certificate.

Ask the institution (such as the bank, Lands Titles Office, Services SA, insurance company, aged care facility, share registry) whether they require a certificate to release the asset. If they do not, select the “No” option when disclosing the asset on CourtSA.

Shares or similar investments in companies

Details of investment

Make sure that you disclose the name of the company and the type of interest.

There are many different types of interests in companies and similar entities. Some of the common types of interest are:

• shares (listed and unlisted)
• options or convertible notes
• stapled securities (listed and unlisted)
• inscribed stock
• bonds and debentures
• unsecured notes
• units in unit trusts
• futures contracts

The company should be able to tell you which is necessary.

If the private company share holdings is a corporate trustee only and not a company which trades in its own right, please include the wording to the effect of “as a corporate trustee for [name of trust] trust”.

You can also disclose shares under ‘other asset type’.

Value

The valuation should be sourced from the ASX or some other publisher of share values, the company’s accountant or by the company itself.

Where the company only operates as trustee of a discretionary or other trust, disclose this information in the Details of Investment field and include the deceased’s shares at a value based on the paid-up capital of the company.

The value of unlisted and private company share holdings are to be provided by an accountant (name, company name and date of valuation to be provided).

Location

Shares in Australian companies are treated as being located in the place where the share register is maintained. This information can be sourced from the ASX website or the company itself.

Superannuation

Disclosure is only required if you have been advised that it will be paid into the estate.

The amount to be entered in the “Amount/Value/Balance” panel is the total proceeds, including any life insurance component.

The source of valuation which you need to enter into the “Advised by” field will usually be the superannuation fund.

If the superannuation fund has not made a decision and requires a grant before it will make a decision, tick ‘yes’ to the question: “Are you aware of additional superannuation assets not listed above that may be disclosed as an estate asset at a later date in the event that the trustee of the fund determines that the deceased’s interest in the superannuation is to be paid to the deceased’s estate?”

If the trustee determines to pay the funds to the estate of the deceased, further disclosure will be required – see s71(3) of the Succession Act 2023 (SA). This can be done on CourtSA by:

1. Log into CourtSA
2. Go to ‘My Cases’ via the portal and select the case.
3. Under ‘Available Actions’ click on ‘Add/Amend Asset or Liability’.

1. Follow the questions to disclose the additional asset.
2. If you ticked ‘yes’ in your grant application to the question: “Are you aware of additional superannuation assets not listed above that may be disclosed as an estate asset at a later date in the event that the trustee of the fund determines that the deceased’s interest in the superannuation is to be paid to the deceased’s estate?” there will be no fee payable.
3. If you did not tick ‘yes’ then, go through the cart payment process.
4. Once payment has been made, you can download a copy of the receipt from the ‘Payments’ tab.

Liabilities

Liabilities are as at date of death and therefore do not include the Probate filing fees nor funeral costs.

It is not necessary to distinguish between secured and unsecured liabilities.

However, if you disclose a mortgage debt or other charge, there should be a corresponding asset (over which the mortgage or charge is secured).

You have two options:

• discontinue your application and relodge. A full refund of the first filing fee will be arranged by the Registry for you.
• wait until the grant has been issued and file an additional or inaccurately described asset. Please be aware there is an additional Court fee associated with this type of lodgement.
  1. For more information read about additional or inaccurately described assets

Effect of marriage or a registered relationship on a Will

If the testator marries or enters a registered relationship after making a Will, the Will is automatically revoked. If it is recited in the Will that it was made in contemplation of the marriage/registered relationship, it may not be automatically revoked.

See section 18 of the Succession Act 2023 (SA)

A registered relationship is a relationship registered under section 9 of the Relationships Register Act 2016 (SA)  and commences when the Registrar makes an entry in the Register.

A relationship registered ends by death, marriage or registration of revocation of the relationship. See section 13 of the Relationships Register Act 2016 (SA).

Effect of divorce or end of a registered relationship on a Will

If, after a will and/or codicil(s) is made, the testator’s marriage or registered relationship is ended—

1. any gift by the will in favour of the testator’s former spouse or partner is revoked; and
2. any appointment by the will of the testator’s former spouse or partner as an executor, trustee or guardian is revoked; and
3. any grant by the will of a power of appointment exercisable by, or in favour of, the testator’s former spouse or partner is revoked.

Where it is clear in the Will that the appointment or gift is intended to continue even after a divorce, then the appointment or gift will not be revoked.

See section 19 of the).

Marking the Testamentary Documents

All lodging parties

Rule 356.5 provides the original Will and any Codicil(s) must be marked by the Applicant(s).

The following marking must appear on the reverse side of the last page of the Will (if the pages of the Will are attached) or if the pages of the Will are separate unattached pages, then the marking must appear on the reverse side of each page of the Will or if a document is double sided (e.g. a Will kit) then the marking should appear along the margins.

The same applies to any Codicil(s).

1. Signature of the Applicant; and
   2. Signature of a Commissioner for taking Affidavits, Justice of the Peace or any other person duly authorised to take an oath; and
   3. The authorise of the person authorised to administer oaths, either stamped or written; and
   4. The date signed; and
   5. The suburb where the marking occurred.

Please ensure the marking does not cover any content of the Will and/or Codicil/s (if any).

If there is testamentary writing on the back of the only or last page, carefully mark that page so as not to obscure any testamentary writing.

Please take care in marking. If any ink from pen or stamp leaches through to make any of the Will difficult to read you may be required to provide an engrossment – see rule 356.13.

When the Will is contained in a Will kit booklet, the marking should be on the Will itself – not some other part of the booklet.

Please do not scan the back page unless it contains part of the Will and/or Codicil(s) (if any).

You may wish to make a clean and publishable copy of the Will and/or Codicil(s) (if any) before you mark them.

Your application will not be considered until the Original Will/Court Authenticated grant has been lodged with the Probate Registry.

Self-Represented Litigants

Rules 351.8 and 356.5 provides that the reverse side of the last page of the Will and any Codicil(s) must be marked before an Authorised person and a Certificate of Identity completed.

Certificate of Identity

In addition to marking the original Will and any Codicil(s), a Certificate of Identity must be completed by the same Authorised person at the same time that the marking is made.

An authorised witness is defined as:

(a)    the Registrar of the Court;

(b)   a justice of the peace;

(c)    a notary public;

(d)   a Commissioner for taking affidavits;

(e)    a police officer, other than a police officer who is a probationary constable; and

(f)    any other person authorised by law to take affidavits;

Annexed (stapled) to the Certificate of Identity must be endorsed copies of your identity papers.

The identity papers provided must include:

• at least one original ID document from Category A
  • the rest of the documentation: all from Category A or from Category A and Category B
  • at least one document that includes your signature/photograph
  • documents with a current residential address
  • ID in one name

Please see Practice Note 4 of 2024 for a full list of Category A and B documents.

If there is more than one Applicant:

• Each must complete an individual Certificate of Identity; and
  • They can complete the above process before different Authorised persons.

The original marked Will, certificate of identity and any other original affidavits or letter should be provided to the Registry by placing it in a A4 envelope without folding it. Stick the printed cover sheet (which you can download from CourtSA after submitting your grant application) on the envelope and lodge it in person or by post.

Your application will not be considered until the Original Will/Court Authenticated grant and Certificate of Identity (for Self-Represented Litigants) has been lodged with the Probate Registry.

Section 8 of the Succession Act 2023 (SA) sets out the requirements for a valid will.

If a will:

1. contains no attestation clause;
2. the attestation clause is insufficient; or
3. it appears to the Registrar that there is some doubt about due execution of the will, an affidavit of due execution and knowledge of contents may be required.

In the first instances this should be provided by one of the subscribing witnesses or if no subscribing witness is available then a person who was present at the time that the will was signed. The affidavit must also establish the testator’s knowledge and approval of the contents of the will or explain to the satisfaction of the Court why that fact cannot be established

Refer to rule 356.6(2)

Refer to rule 356.6(4) and (5) if none of the above persons are able to provide an affidavit.

Forms PROB35-37

If it is established that the will was not signed in accordance with section 8 of the Succession Act 2023 (SA) you will need to give consideration to section 11(2) of the Succession Act 2023 (SA) and rule 353.5.

What if the date of the Will (and/or codicil(s)) is uncertain?

The date of a Will or codicil may be uncertain for a number of reasons. For example:

• there is no date at all on the document
• the date is incomplete (eg: “this day of 2018”)
• the date illegible or unclear
• there is more than one date

You will need to provide affidavit evidence regarding the date the Will or codicil was signed by the testator.

Who should provide an affidavit?

That evidence might be provided by:

• a witness the Will
• a person who was present when the Will was signed
• the person who took instructions for the Will
• the person who prepared the Will for the testator
• the person who held the Will for safekeeping or some other reason

What type of evidence should be provided?

You should attempt to determine the exact date the will was signed and if this is not possible, then a date range.

This might be provided through diary entries of those involved, addresses provided in the Will for the testator or an executor or a beneficiary (ie. the address of the testator might be one they lived at for only a short period of time, or the address of an executor or beneficiary might be linked to a date range because someone remembers they only moved to that address before or after a certain event). If the will was made on a computer information such as the dates on which computer records were created and changed might also provide evidence of the date.

What if I cannot provide evidence of the date?

If evidence proving the date cannot be provided, then an affidavit is required from the Applicant showing that the Will is the latest or only Will of the testator. The affidavit must state that thorough searches have been undertaken and no other wills or testamentary document have been located. Examples include:

• searching places where other important papers were kept
• advertising in the Law Society Bulletin
• inquiries at the testator’s bank, accountant, financial planner and solicitor

If the person making the affidavit was present when the will was executed s/he should also establish the testator’s knowledge of the contents of the Will or explain why that fact cannot be established.

See rule 356.12

Form PROB35

Why is it important to leave the Will and/or codicil(s) alone?

The Will and/or Codicil should not be tampered with once it has been executed.

The document produced to the Court should be in the exact condition as when it was signed by the testator.

Here is what you should not do:

• Change the physical appearance of the Will (or codicil) in any way.
• Remove staples from an original Will (or codicil). Do not allow anyone else to do so.
• Attach anything to an original Will (or codicil) by glider, bulldog or any other clip.
• Remove anything from an original Will or codicil
• Laminate a Will (or any document relating to a Probate application)

What if it’s too late?

If at the time of lodgement there is any mark on or hole in the Will it appears that a paper, memorandum or other document may have been annexed or attached to a Will, it must be accounted for and the paper, memorandum or other document must be produced; or, if not produced, its non-production must be accounted for to the Court’s satisfaction.

If the condition of the Will cannot be accounted for, evidence of unsuccessful searches for any other testamentary document must be provided.

Refer to rule 356.9

Affidavit – Form PROB39 – You need to provide an affidavit of plight, condition and finding.

I only have a copy of the Will, not the original

If you do not have the original Will, you may wish to seek legal advice from a lawyer.

Please be aware that Registry staff cannot provide legal advice.

For more information about copy will applications refer to rule 353.7 and Application Information For Lodging Parties.

What if the Will is not in English?

If the whole of the Will or part of it is not in the English language, a translation into the English language is required. The translation must be by a qualified translator.

Many translators are available through the Interpreting and Translating Centre.

The translation should be headed “TRANSLATION FROM THE ITALIAN” (or other language).

The translation should be annexed to an affidavit of the translator. The affidavit must include:

• the qualifications and experience of the translator, and
• a statement that the annexure is a true and faithful translation of the original, and
• the original death certificate should be exhibited to the affidavit, with the marking required by Note 7 to Form PROB34.