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A common question we get asked by new executors is What is Probate and why do I need it ?
What is Probate ?
Probate refers to the process of proving of the will of a deceased person by way of an application to the Supreme Court and also to the Grant of Probate which is the legal document that is obtained.
The legal document – “the Grant” used to take the form of a one page certificate with an embossed red stamp, with a sealed copy of the Will annexed. Very formal. However, since the State Courts moved to electronic filing in 2020, the Court now produces a digitally signed PDF that has the same effect. There will also be documents created by the Court such as Registrar’s Certificates and a sealed Statement of Assets and Liabilities. These are also needed to deal with the Estate assets.
Why do I need Probate ?
The executor of a Will generally need to obtain a Grant of probate in circumstances where there is an asset of the estate that will not be released by the relevant body without that Grant. The most common examples include:
- Land or interests in land – the Lands Title Office always requires probate.
- Banks – in excess of ~ $50,000 (combined accounts per institution)
- Credit unions – in excess of $~ 15,000 (nett after taking into account funeral expenses)
- Share registries – in excess of ~ $20,000
- Retirement Village interests – almost always
- Accommodation bonds – almost always
- Superannuation Trustees – only if the super forms part of the estate
It’s always worth asking to see if these policies (they are not law) can be bent. These limits are not rules of law, but are simply the policies of each entity.
There is generally no need for a grant where all the assets are in joint names – but it might trigger a need to review the survivor’s Will and other documents. Please call us if you have questions.
Words of Warning
Obtaining probate is technically complex and the Probate Registry will not give advice. Most executors will therefore engage a lawyer to assist with the application process. We can also assist with the post-grant distribution process.
We provide our client’s with an Executor’s checklist to work through so that all aspects of the estate are considered. Many of our client’s using this checklist will arrive at the first meeting with a death certificate and all of the other documents and details that are needed. We can then begin drafting the application.
This allows us to obtain probate quickly – or at least in the quickest time possible given the inherent delays in the SA Probate Registry !
