The authority to act
When someone dies, the executor named in their Will has a legal role to fulfil. But that role cannot be exercised until the Supreme Court of South Australia formally recognises it. That recognition is called a grant of Probate, and without it, most banks, financial institutions, and the Lands Titles Office will not release assets or transfer property.
Probate is not a complicated concept. It is the court’s confirmation that the Will is valid, that the executor is the right person to act, and that the estate can proceed to administration. The process itself, however, requires careful preparation and a working knowledge of what the Supreme Court requires.
When a grant of Probate is required
Whether a grant is needed depends on the nature and extent of the assets in the estate.
A grant will be required if the deceased owned real estate in their own name or as a tenant in common with another person. The Lands Titles Office will not transfer land without one. A bank holding money in the deceased’s name will also typically require a grant before releasing funds, though smaller accounts may be dealt with differently.
Real estate owned as joint tenants does not form part of the deceased estate. It passes automatically to the surviving joint tenant and is not subject to a grant of Probate.
Where the estate consists only of modest funds in a bank account and no significant assets, it may be possible to administer the estate without a grant. Our team can advise on whether this applies in your circumstances.
When there is no Will
If a person dies without a valid Will, they die intestate. There is no executor. An administrator must be appointed by the court instead, through a process called a grant of Letters of Administration.
The Succession Act 2023 determines who has priority to apply as administrator. The order of priority runs: spouse or domestic partner, then children, then parents, then siblings. A person in a lower priority category cannot apply unless those above them have died, do not exist, or have formally renounced their entitlement.
The obligations of an administrator are similar to those of an executor, with additional requirements imposed because the deceased did not choose the person administering their estate.
When the Will presents complications
Not every grant of Probate is straightforward. Our team has extensive experience with the situations that create complexity.
A lost or damaged Will
A grant may still be made on a copy of a lost Will, subject to a Supreme Court application. Damage to a Will, including marks, re-stapling, or alterations made after signing, must be explained before a grant will issue. Significant damage may raise a presumption that the deceased intended to revoke the Will, requiring evidence to the contrary.
An unsigned or incorrectly executed Will
A Will must be signed by the deceased in the presence of two or more witnesses present at the same time. If this requirement has not been met, a Supreme Court application may be required to establish whether the document constitutes a valid Will.
Uncertainty about the executor
Where the description of an executor in the Will is unclear, or where more than one executor is named and conflict exists between them, legal advice is required to determine who is entitled to obtain the grant. Supreme Court applications for directions are available where genuine uncertainty exists.
A deceased or incapacitated executor
If a named executor has died or lost capacity before the grant is obtained, the Will may appoint a substitute. If it does not, a further Supreme Court application is required.
Urgent grants
In some circumstances a limited grant of Probate can be obtained quickly, for example where the deceased was party to a property contract that must settle, or where an asset may lose significant value if not dealt with immediately. Our team has experience with urgent applications and can advise on what is possible.
Home-made Wills
A Will does not need to be prepared by a lawyer to be legally valid. Many home-made Wills do meet the minimum requirements. The problems arise after death, when ambiguous terms, incorrect execution, failed gifts, and partial intestacies require resolution, often at significant cost and delay to the estate. Our team can work through these issues, but prevention is always the better path.
Inheritance claims and the grant
Once a grant of Probate is made, the Will becomes a public document. Anyone who wishes to challenge the validity of the Will should act before the grant is made, not after. A caveat lodged at the Probate Registry prevents any grant from issuing until the challenge has been resolved.
If you have concerns about the validity of a Will, do not wait for a grant to be made. Contact our team immediately.
We are here before you need us
The best time to think about Probate is before it is ever needed: when preparing a Will that is clear, properly executed, and leaves no room for dispute. Our team prepares Wills designed to move through Probate without complication.
If you are already dealing with an estate and need guidance, we are ready now.
Book a conversation with our team. No obligation. No pressure. Just a clear picture of where you stand and what needs to change.
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Download our plain-language guide: Executors’ Duties in a Deceased Estate. Written for South Australians, not lawyers.