What is probate and when do you need it
Probate is the court's formal recognition that a will is valid and the executor has authority to administer the estate. Many estates need it – but not all.
Probate is a grant made by the Supreme Court of South Australia that confirms a will is legally valid and authorises the named executor to administer the estate. You generally need probate when the deceased owned real property in their sole name, or held significant assets with institutions that require a court grant to release funds.
When probate is required
Real property owned in the deceased's sole name almost always requires probate to transfer or sell. Banks routinely require probate for accounts above around $25,000 – $50,000, though the threshold varies by institution. Share registries typically require probate for holdings of any size.
Smaller estates with only jointly-held property and super death benefits paid directly to beneficiaries often don't need probate.
When probate is not required
If the deceased owned everything jointly with a spouse (who survives them), no probate is needed – assets pass by right of survivorship. If the estate is below the thresholds of all institutions holding assets, a small estates declaration may suffice.
Superannuation and life insurance paid directly to nominated beneficiaries bypass probate entirely.
The probate application process
The executor (or their solicitor) files an application with the Probate Registry of the Supreme Court, including the original will, a death certificate, an inventory of assets, and an executor's oath. The Registry reviews and issues the grant – typically in 4 to 8 weeks.
Once granted, the executor has legal authority to collect assets, pay debts, and distribute the estate to beneficiaries.
Letters of administration (no will)
If the deceased died without a valid will, an administrator (rather than executor) must apply for letters of administration. The rules for who can apply are set out in the Administration and Probate Act 1919 (SA).
Administration is slower, more expensive, and more uncertain than probate under a valid will.
Summary
Probate is the court's formal recognition that a will is valid and the executor has authority to administer the estate. Many estates need it – but not all.
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Disclaimer: This article is general information only and does not constitute legal advice. Estate planning is deeply personal - every family's circumstances are different. For advice specific to your situation, please contact Rosewood Succession Solicitors.