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Wills and Probate – 5 Common Questions

Last Will and Testament document with gavel and penWhat is Probate?

A grant of probate is the registration of a Will by the Supreme Court and is required to be obtained prior to any assets of the estate being distributed in accordance with the terms of a person’s Will.

If a Will is not clearly drafted or is easily challenged, a grant of probate may be delayed or in some cases refused. In circumstances such as these, the Supreme Court will be required to intervene at significant cost to the estate.

How do I obtain a grant of probate?

The process for obtaining the grant of probate involves the executor preparing and lodging several documents with the Supreme Court of South Australia along with the original Will and list of all assets.

Whilst it is a legal requirement that the documents be signed by the appointed executor, due to their detailed nature, it is the usual practice for the documents to be drafted by a solicitor with experience in the area.

What if I don’t have a Will?

If a person dies without a Will or it cannot be found, after all reasonable avenues to locate the Will have been exhausted, they will be deemed to have died intestate.

In this case, an application to the Supreme Court for the appointment of an administrator to carry out the order of the court (letters of administration) would need to be made.

The process of applying for letters of administration is more expensive than applying for grant of probate, and with no Will to guide the administrators, the estate will be distributed according to legal assumptions without regard to the wishes of the deceased.

What if I don’t know if there is a Will? Where would I find it?

You may not know where to find the Will of your deceased family member.

If it is not with personal papers it may be held securely at the bank, legal office, public /private Trustee or Insurance Company relevant to the affairs of the deceased person.

At Williams Barristers & Solicitors we retain all Wills drafted on behalf of our clients, to ensure that the document is safely stored and easily located when needed.

Why pay a lawyer to do your Will? – I can get one from the Post Office

Where there are questions as to the interpretation of a Will, its execution or general validity the intervention of the Court may be required. This of course can turn what appeared to be an inexpensive alternative to having your will drafted by a solicitor into a very costly exercise for your estate and of course will affect the assets distribution to the intended beneficiaries.

There are specific requirements that each Will must adhere to in order to valid. The only way to ensure that your Will is properly drafted and that your wishes are communicated effectively is to engage the assistance of a qualified solicitor.

At Williams Barristers & Solicitors we have extensive experience drafting all manner of Wills ranging from simple family Wills to complex Wills dealing with mixed families, trusts, businesses and proprietary limited companies.

Ensure you have expert legal advice to draft a Will or to administer an estate. Call Williams Barristers & Solicitors today on (08) 8451 9040

Further Information

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