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Williams barristers and solicitors  |  121 South Road, Thebarton SA 5031  |   (08) 8451 9040  |  Email Us

Wills and Probate – 5 Common Questions

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

Probate is the proving and registration of a Will in the Supreme Court and in many cases is required for an executor/trustee to access and distribute assets of a deceased estate in accordance with the terms of a deceased person’s Will.

The process is complex and depending on how well a Will is drafted can involve numerous steps before a grant of probate is made. An incorrectly drafted application can result in requisition and delay of the grant, so we recommend that you engage a duly qualified estate lawyer at an early stage to avoid any unnecessary costs/delays in the administration of the estate.

How do I obtain a grant of probate?

The process for obtaining the grant of probate involves the executor first identifying the assets and liabilities of the estate in order to prepare and lodge the required application with the Supreme Court of South Australia. A Death Certificate, the original will of the deceased and a statement of assets and liabilities are just some of the documents which must be included in the application.

Given the complex and technical nature of the application process, it is the usual practice for the application to be drafted by a solicitor with experience in the area.

As of 26 November 2018, all probate applications must be lodged through the CourtSA portal.

What if I don’t have a Will?

The process for obtaining the grant of probate involves the executor first identifying the assets and liabilities of the estate in order to prepare and lodge the required application with the Supreme Court of South Australia. A Death Certificate, the original will of the deceased and a statement of assets and liabilities are just some of the documents which must be included in the application.

Given the complex and technical nature of the application process, it is the usual practice for the application to be drafted by a solicitor with experience in the area.

As of 26 November 2018, all probate applications must be lodged through the CourtSA portal.

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 the case of an intestacy, the law makes presumptions as to who may apply to the Supreme Court for Letters or Administration to administer the estate. The law also makes presumptions as to whom the estate is to be distributed.

Dying intestate can have drastic consequences for those you leave behind particularly when you leave more than one person entitled to your estate such as a partner and child.

For example, if you own property with your partner as a tenant in common and are survived by your partner and a child, your partner is entitled to the first $100,000.00 and half of everything else. Your child would be entitled to half of everything else and if they are a minor at the time of your death, their share must be paid to the Public Trustee.

If the asset was a house, your partner may be required to sell the home to pay out the child’s share.

This is just one example of the serious consequences that flow from dying intestate. The good news is that it can all be avoided by drafting and executing a will.

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. We register all our wills on the Law Society’s wills register so that it can be easily located by your loved ones.

Our access to the Law Society’s wills register also allows us to search for wills drafted by other law firms in the event we are approached by loved ones of a deceased.

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

Whilst a will may appear simple, they are highly complex documents which must adhere to rules of interpretation and construction developed over hundreds of years.

Simple things like signing in the wrong place, using the wrong pen, marks or issues of interpretation can lead to protracted and often expensive litigation through Courts.

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.

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

Williams Wills and Estates Lawyers

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