When is Probate required?

A Grant Probate is a certificate issued by the Supreme Court of South Australia that can be relied upon by the executors named in the Will of a deceased person to prove that (a) the person has died, (b) that the Will in which they are named executors is the last Will and Testament of the deceased person and (c) that the executors have authority to deal with the assets of the deceased person in accordance with the Will.

It is necessary for executors to obtain a Grant of Probate from the Supreme Court of South Australia when assets owned by the deceased in this State are of a certain nature or value. For example, real estate owned by a deceased cannot be sold or transferred without the title to the land first being transmitted to the executors who must first produce to the Registrar General a certified copy of the Grant of Probate; similarly with the sale and transfer of shares in publicly owned companies.  Each bank and financial institution will have its own policies regarding the closure and distribution of account balances depending on their value.

If the major assets of a deceased person are all jointly held with their spouse then under the common law of Survivorship, legal ownership will automatically pass to the surviving joint owner and will bypass the estate of the deceased. So, for example, in many husband and wife relationships it can be that the Will of the first spouse to pass away does not require a Grant of Probate despite the deceased having co-owned assets of significant value during his or her lifetime.

If a deceased person passes away without having created a Will or has created an invalid Will, then the deceased will be deemed to have died “intestate”. In that situation, an appropriate person seeking to deal with the assets of the deceased (such as a spouse or child of the deceased) or otherwise the Public Trustee will need to apply to the Supreme Court for a Grant of Letters of Administration of the estate of the deceased in accordance with the Rules of Intestacy which provide for the order of division of the estate between the deceased’s spouse and children or other relatives.