It is no longer 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.

A grant of probate is made in the name of the person applying for the grant (the applicant). Where there is a Will, often the applicant will be named as an executor in the Will. Sometimes the name of the applicant is written differently in the Will

  • one or more name may have been left out
  • one or more names may have been added
  • an abbreviation may be used
  • an initial may have been used
  • the order of the names may be wrong
  • the spelling may be wrong
  • the name may have changed since the Will was made

If the name of the applicant(s) is not exactly the same as the name in which you are applying, you need to provide an affidavit. The affidavit should explain why the names are different and establish that the applicant is the same person as the person named in the Will.

The affidavit should be scanned and uploaded.

The details you provide in the Assets and Liabilities section of the CourtSA forms will be used to produce the statement of assets and liabilities and any Registrar’s Certificates. You do not need to provide an Affidavit of assets and liabilities (Form 55) or Registrar’s certificate (Form 57).

Parties or their solicitor (if represented) can download the statement of assets and liabilities from the case in CourtSA.

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. ASIC maintains a list of those institutions. You can find it at:

Register of authorised deposit taking institutions

If there is no BSB, enter “None” in the “BSB” field

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

Money in a share account in a Building Society may be treated as a deposit for the purpose of disclosure.

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

“Cash” means cash – notes and coins. It does not include money in a bank account, or undeposited cheques, or money that is owing but not paid.

It is not necessary to provide any further description.

Enter the amount of cash in the “Amount/Value/Balance” panel.

While it is unlikely that you will need a Registrar’s Certificate for this type of asset, the Court will not refuse to supply it. The default answer to the question “do you need a Registrar’s Certificate” on the form is “Yes”. If you would prefer not to receive a certificate, change the answer to “No”.

If you do not have the original Will, you may wish to get legal advice if you are not represented by a lawyer, as the law is complicated.

Where the original Will cannot be found after death, it may be presumed that the deceased person destroyed the original Will because s/he wanted to revoke it. It may be presumed that the copy of the Will is not valid.

What evidence do I need?

If you want to say that a copy of a Will is valid, you need to provide evidence in an affidavit. Academic texts such as Haines, Succession Law in South Australia, ch 12 and Hardingham, Neave & Ford, Wills and Intestacy in Australia and New Zealand, 2nd ed par 613 describe the type of evidence that is needed.

What application do I make to the Court?

You need to make an originating application under Rule 69 in the Supreme Court Probate Rules for an order allowing the Grant in respect of the copy of the Will.

Where the exact date of death is unknown, Rule 28(5) of the Probate Rules sets out the evidence to be provided:

  • An affidavit from the person who last saw or knew the deceased to be alive, setting out the date and circumstances the deceased was seen or known to be alive and/or
  • An affidavit from the person who found the body of the deceased, stating the date and place the body was found. If the person who found the body did not know the identity of the deceased, an affidavit establishing that the body found was the body of the deceased.

Sometimes the Coroner’s Court may be able to provide the necessary evidence. You will need to contact the Coroner’s Court to find out if they have information about the circumstances of the death, and ask the Coroner for the relevant police statement and an affidavit from the Manager of the Coroner’s Court. Here is an example of an affidavit that has been used :

I Michelle Kathleen Bayly – Jones Manager of the State Coroner’s Court of 302 King William Street Adelaide 5000 do truly and solemnly affirm that:

  1. I am the Manager of the State Coroner’s Court of 302 King William Street Adelaide 5000.
  2. The State Coroner conducted an enquiry into the death of # deceased (“the deceased”).
  3. Annexed and marked “A” is a true and correct copy of the original Statement of Witness provided by the last person known to have seen the deceased alive which original statement is held on the file at the Coroner’s Court.
  4. Annexed and marked “B” is a true and correct copy of the original Statement of Witness provided by the person who found [… and identified…] the body of the deceased which original statement is held on the file at the coroner’s Court.
  5. Annexed and marked “C” is a true and correct copy of the original statement of witness provided by the person who identified the body of the deceased which original statement is held on the file at the coroner’s Court.
    or
    5. The State Coroner found that the body in question is that of the deceased.
    Affirmed by Michelle Kathleen Bayly – Jones
    at Adelaide 5000
    this                   day of                                20…………………………………..
    (signature of deponent)
    before me

……………………………….

(signature of attesting witness)
[print name of witness]
[print title of attesting witness]
[ID number of witness]

[+usual back sheet to be attached behind the last annexure to this affirmation]

Where there is an error in a death certificate, the Court may issue a grant in a different name. The public records of the State should not be inconsistent. If there are errors in a South Australian death certificate those errors should be corrected.

What should you do?

  1. Check the names, addresses, place of death, date of death, marital status and details of children.
  2. If there is an error in the death certificate, the executor or administrator making the grant or other application should undertake to apply to have it corrected.
  3. After you have completed your probate online application and you can see the case in the My Cases section of CourtSA, you should upload a letter to the Court stating that you undertake to apply to the Registrar of Births Deaths and Marriages to have the death certificate correct.

The Court expects that undertakings will be honoured. Unless there is a direction to the contrary, it is not necessary to upload a copy of the corrected certificate.

A copy of the death certificate should be uploaded with every application. An interim death certificate is okay.

How do I get a death certificate?

View information about who can get a death certificate and how to apply.

What if I can’t get the death certificate?

Sometimes it is not possible to get a death certificate before you make an application for a grant of probate. You must:

Provide a letter to the Registrar of Probates stating

  • why you can’t provide the original death certificate, and
  • that you will provide a certified copy of the death certificate when it becomes available.

You must also provide other evidence of death, such as:

  • a copy of the “Doctor’s Certificate of Cause of Death”
  • a copy of a published obituary
  • a copy of a published funeral notice
  • a letter from the funeral director.

The Probate Examining Officer may require you to make further attempts to obtain the original death certificate, or to wait until it is available.

The description of the debt should explain how it is due. The following are examples:

  • Money due under contract dated ….. between deceased and AB
  • ATO refund
  • Salary and long service leave due from AB Pty Ltd

The amount entered should be the total due (including any interest).

If you are not represented by a lawyer, you may wish to get legal advice, as there are many complex rules which apply.

The deceased died overseas

Where the deceased was domiciled (had the intention of staying indefinitely) in South Australia but died overseas, you may be able to get a death certificate from Consumer and Business Services or telephone 131882

The deceased died in a Commonwealth country

A death certificate from a country that is a member of the Commonwealth of Nations may be uploaded, if the certificate is in English.

What if the death certificate is not in English?

If the death certificate or part of it is not in English a translation into English is required. The translation must be by a qualified translator.

The translation should be headed “TRANSLATION FROM THE ITALIAN” (or other language). Any handwritten parts, such as dates, names and signatures, should be typed in.

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 6 to Form 22.

For the difference between annexures and exhibits, click here [Annexures and Exhibits link].

Many translators are available through the Interpreting and Translating Centre

The deceased died in a country that is not member of the Commonwealth

If you have a death certificate from a country that is not a member of the Commonwealth, there are complicated rules about how the death certificate must be verified. You may want to get legal advice.

If the country is a signatory to, and has ratified, the Hague Convention Abolishing the Requirements of Legislation for Foreign Public Documents, the death certificate must be authenticated as prescribed by the Foreign Evidence Act 1994 (Cth)

The list of such countries that are a signatory to, and has ratified, the Hague Convention Abolishing the Requirements of Legislation for Foreign Public Documents.

For other countries, the death certificate must have been authenticated in the manner prescribed by sections 66, 66A and 67 of the Evidence Act 1929.

Where there are differences in the name of the deceased and the name in the Will, the Rules are very complicated and it is recommended that if you are not represented, you get legal advice.

There are a number of rules about the name in which probate will be granted. The main rules are found in Rule 12 in the Supreme Court Probate Rules.

Generally the signature of the Will maker should be adopted as the Will maker’s name even if it is different to the name in the heading of the Will

For example:

Heading: Jonathan

Signature: John

The Grant will be in the name John.

The deceased had assets in different names

If the deceased had assets in different names, the grant may be issued in more than one name.

Where the deceased was domiciled (had the intention of staying indefinitely) outside South Australia the Rules are complicated and you may wish to get legal advice.

You may need to apply for an order under Rule 42 (link), before making a grant application.

Such an order is not necessary if:

  • the Will is in English and appoints an executor (or executor according to the tenor of the WIll); or
  • the only assets in South Australia are real estate or an interest in real estate.

If an order is needed, you should make an originating application referring to Rule 42 and attaching an appropriate affidavit.

If the deceased was domiciled outside Australia, you only need to disclose assets and liabilities that are within Australia (see Section 121A of the Administration and Probate Act 1919). You will need to upload an affidavit proving where the deceased was domiciled.

In most cases, where a Will maker appoints their spouse to be the executor, that appointment is automatically revoked if they divorce. In most cases, a gift to a spouse is also revoked if they divorce.

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.

Section 20A of the Wills Act 1936 applies here.

These rules also apply where a relationship registered under the Relationships Register Act 2016 ended by death, marriage or registration of revocation of the relationship.

Section 13 of the Relationships Register Act 2016 applies here.

If the Will maker married after making the Will, the Will is automatically revoked. If the Will says that it was made in contemplation of the marriage, it will not be revoked. See section 20 of the Wills Act 1936.

The same applies if the Will maker entered into a relationship registered under section 9 of the Relationships Register Act 2016.

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 online form is mainly self-explanatory.

In “Nature of interest” describe the interest – residuary devisee and legatee, legatee, as the case may be. If a Registrar’s Certificate with certificate of title or bank account or share details is required, add these details here.

The value should be that given by the Trustee.

The Court has to decide whether the Will is the whole and unchanged Will. The Court needs to make sure that nothing has been removed, added or replaced. This is very important to prevent fraud.

If there are staple holes, bulldog clip marks or indents in the Will, it is possible that without the consent of the deceased:

  • a page was attached to the Will, and has been removed
  • a page was removed and a different page put in its place.

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 changes have been made already, you need to provide an affidavit. Any changes to the physical appearance of the Will (or codicil), such as staple holes, or bulldog clip indents, must be explained in the affidavit. The Probate Registry Examining Officer has to be satisfied that the Will as presented to the Court is in fact the complete and exact document that was signed by the deceased.

If you are not represented by a lawyer, you may wish to get legal advice, as the Rules and requirements for these affidavits are complicated.

The affidavit is required by Rule 22 of the Probate Rules. The basic form of this affidavit is Form 2.

It is no longer 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).

The notes to Form 55 give a list of possible liabilities. It is suggested that you follow those when describing liabilities.

Only make disclosure here 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.

All lodging parties

Rule 15(a) of the Probate Rules 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 17 of the Probate Rules.

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

Practice Note 1 of 2019 and Rule 15(a) of the Probate Rules 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 as the marking is made.

The following are Authorised persons for the purposes of Practice Note 1 of 2019:

i. a Commissioner for Taking Affidavits in the Supreme Court of South Australia; or

ii. a person duly authorised to administer oaths in any State or Territory of Australia; or

iii. a Judicial Registrar, Registrar or Deputy Registrar of the Supreme Court, the District Court, the Environment, Resources and Development Court and the Magistrates Court within South Australia.

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 1 of 2019 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 white 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.

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 (link)

The make, model and year of manufacture (if known) should be entered into the “Vehicle make” panel

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

If the asset is a boat, describe the make and model in the “Vehicle Make” panel.

While it is unlikely that you will need a Registrar’s Certificate for these types of assets, the Court will not refuse to supply them. The default answer is “Yes”. If you would prefer not to receive a certificate, change the answer to “No”.

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:

  • assets held in trust by the deceased for some other person
  • mortgages in respect of which nothing is owing, but remain registered
  • shares in a company that is only a trustee

Such assets should be disclosed in the “Property held by the deceased as a Trustee” Field – even if not held on a trust. 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.

If the Will or codicil or part of it is not in English a translation into English 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). Anything handwritten should be typed in.

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 6 to Form 22.

Read about the difference between annexures and exhibits.

Examples of other types of assets can be found in the Notes to Form 55

You may use any description you like – first, check that it will meet the needs of the person or institution who holds the asset.

Choses in action, such as unfinalised claims for damages or compensation – should not be include here, but instead disclosed in the “Property held by the deceased as a Trustee” Field – even if not held on a trust. You should also upload a written undertaking to make additional disclosure when the matter is finalised.

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. This is an example of how the asset may be disclosed:

Interest as vendor under a contract for sale.
Address: 28 Main Street Adelaide 5000
Title reference: Volume 8888 Folio 111
Date of contract: 1 July 2100

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

Beneficiary: Jane Smith

Bank account held by deceased for beneficiary

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.

This is not for assets held by the deceased as a trustee. Nor is it for potential interests under a discretionary trust.

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

Trustee: John Smith
Created by deed of trust dated 1 January 2001
Interest in remainder in certain land

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.

What if a contract of sale was signed?

Where the executor/s have signed a contract for the sale of the real estate after the death occurred, then the contract price may be used as the value.

If a contract for the sale of the real estate was signed before the death occurred, the asset should be called “Other asset type” not “real estate” when listing assets in the online form.

This is an example of how the asset may be disclosed:

Interest as vendor under a contract for sale.
Address: 28 Main Street Adelaide 5000
Title reference: Volume 8888 Folio 111
Date of contract: 1 July 2100
Contract price: $100,000.00

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 valuer. An executor’s estimate for real estate is not acceptable unless the executor is a licenced valuer.

A relationship registered under the Relationships Register Act 2016 (“the Act”) commences when the Registrar makes an entry in the Register. See section 9 of the Act.

If the Will maker enters into a registered relationship after making the Will, the Will is automatically revoked, unless it says that it was made in contemplation of the registered relationship. See section 20 of the Wills Act 1936.

A relationship registered under the Act is ended by death, marriage or registration of revocation of the relationship. See section 13 of the Act.

In most cases, where a Will maker appoints their spouse to be the executor, that appointment is automatically revoked if they revoke the relationship. In most cases, a gift to a spouse is also revoked. Section 20A of the Wills Act 1936 applies here.

What is a registrar’s certificate?

Section 121A of the Administration and Probate Act 1919 (the Act) requires every applicant for a grant to disclose to the Court the assets and liabilities of the deceased person.

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 44 of the Act.

Section 44(1) of the Act provides

“A person who deals with an asset of the estate of a deceased person that is required to be disclosed under section 121A must satisfy himself by examination of the Registrar’s certificate, or 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 is not always necessary. You will 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, insurance company, aged care facility, share registry) whether it requires a certificate. If it does not, select the “No” option when disclosing the asset in the online form.

Details of investment

Make sure that you give 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

Make sure you describe the interest correctly in the Details of Investment field in the online form. The company should be able to tell you which is necessary.

Value

The valuation should be by the ASX, 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, say so in the Details of Investment field and include the deceased’s shares at a value based on the paid-up capital of the company.

Location

Shares in Australian companies are treated as being located in the place where the share register is maintained.

Only disclose superannuation here 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 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, disclose the asset as “Property held by the deceased as Trustee” – even if not held on a trust. Include the face value (if any) of the asset 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. Include in the description an undertaking to make additional disclosure in the event that the superannuation is paid into the estate.

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 need to provide affidavit evidence about the date of the Will or codicil

If the date of a Will or codicil is uncertain, affidavit evidence about the date the Will or codicil was made must be provided.

Who should provide an affidavit?

That evidence might be provided by people who:

  • witnessed the Will
  • were present when the Will was signed
  • took instructions for the Will
  • prepared the Will for the Will maker
  • had the Will for safekeeping or some other reason
  • had made a note in their diary

What type of evidence should be provided?

Evidence about the date of the Will might come from the words in the Will, such as the addresses and names used in the Will. Information which is not contained in the Will, such as the dates on which computer records were created and changed, or accounts raised and paid, might also provide evidence of the date of the Will or codicil.

What if I can’t provide evidence of the date?

If evidence proving the date cannot be given, then an affidavit showing that the Will is the latest or only Will of the Will maker must be provided –see Rule 21(2) link. The person making the affidavit must make thorough searches in all places in which the Will maker may have left another Will. Examples include:

  • searching places where other important papers were kept
  • advertising in the Law Society Bulletin
  • inquiries at the Will maker’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 Will maker’s knowledge of the contents of the Will or explain why that fact cannot be established – see Rule 26 [link] and Rule 18 [link].

The affidavit(s) should be uploaded. Any necessary marking (Note 6 to Form 22) should be made. Please scan the affidavit(s) before stapling. If you do remove staples for scanning, you should upload another affidavit explaining that.

How do I upload the affidavit(s)?

How to lodge an affidavit and any necessary supporting documents.

The operation of Rules 21(3), (4) and (5) is suspended until further notice – or notice in any given case.