What is Probate?

It is very usual for the first question in a meeting with a client to be “What is Probate?”

The word Probate stems from a Latin word which means “to prove” and a Grant of Probate from the Supreme Court of South Australia is an order that a person’s Last Will and Testament is legally valid and the person or people named in that Will are the rightful executors to administer the estate.

The Supreme Court will retain the original Will and issue a copy of the Will with the Grant of Probate attached to it which gives the executor of the estate the authority to carry out their duties under the Will which will usually entail (1) calling in the assets and (2) distributing them to the beneficiaries.

It also allows them to conduct litigation on behalf of the estate and enter into agreements and do everything else required to finalise the person’s estate after they have died.

The Probate process and the Probate application process is a public process that allows  people to know if someone has lodged an application for Probate and if necessary place a Caveat over the granting or Probate if they are concerned that a Will isn’t the last Will, or if a person lacked testamentary capacity to make their last Will.

The Probate process is one which requires some significant effort and will be significantly scrutinised by the Probate Registry of the Supreme Court of South Australia.  A person will also have to pay a fee ranging from just under $1,000.00 to over $3,500.00 to have the Supreme Court grant the application for Probate. The fee is calculated by the Probate registry based on the assets of the estate.

Often, people express their dissatisfaction at this process.  It is a necessary and desirable one to ensure that unscrupulous scammers cannot easily fake someone’s Last Will and Testament and death in order to steal their assets. It also ensures that there is oversight so that a person cannot simply do as they please should they be named as an executor.

Probate is sometimes referred to as the entire process of administering someone’s estate but it has a specific technical legal meaning.  If a person dies without a Will they will also have to undertake a very similar process with the Probate Registry in order to administer that person’s estate.  However, instead of the estate being distributed according to the Will, it will be distributed in accordance with the Administration and Probate Act.

In the event that someone passes away without a Will the estate will be distributed in accordance with legislation which can sometimes lead to significant problems.

Instead of applying for Probate if someone hasn’t got a Will they will apply for Letters of Administration whereby the Court appoints a person’s next of kin to be their executor (who in that situation is referred to as the administrator).