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Estates

This part deals with the collection and distribution of a deceased's estate. The relevant law is contained in the Administration and Probate Act 1919 (SA).

If there is a will

See also: Probate and Letters of Administration

When a person dies leaving a will, certain procedures have to be gone through before that person's wishes can be carried out. Lawyers, the Public Trustee and private trustee companies do this type of work. Usually a grant of probate (registering of the will by the Supreme Court) is required so that the assets of the estate may be collected for the beneficiaries. Small estates can often be handled without obtaining a grant of probate but large amounts of money and assets such as land cannot be transferred or sold without a grant of probate. If a will is defective or is challenged, it may not be possible to obtain probate of it.

If no executor has been appointed or no executor is able or willing to handle the estate, an application must be made for a grant of letters of administration with the will annexed.

A grant of probate or letters of administration with the will annexed also gives protection to the beneficiaries, who can be assured of being the only people who will receive the property of the deceased. If another person disputes their claim by the production of another will, the only way that person can receive any of the estate is to apply to the court to revoke or change the grant of probate.

For a grant of probate to be made, there must be a will. However, often the family do not know whether or not the deceased left a will or, if there is a will, where it can be found. If the will is not with the deceased's personal papers, checks could be made with the deceased's bank, lawyer or accountant. A deceased may have left a will with the Public Trustee or a private trustee company. If no will can be found, the person is treated as having died without a will intestate. See If there is no will.

Life tenancy

It is not uncommon for a will to say that a particular person has the right to live in a home for that person's life. This is called giving a life tenancy (or also called life interest or life estate). Advice should always be sought as, depending on the wording, the right to use the property may cease if the life tenant no longer resides in the home. Alternatively the life tenant may have the right to use the home for the rest of her or his life, even if not residing in the home. This may allow the life tenant to rent the home to someone else and collect the rent payments.

A will generally says that a life tenant must pay rates, taxes and maintenance costs on the home. If these costs are not paid, another beneficiary may be able to apply to the Supreme Court which can order either that the costs are paid, or that the life tenancy be terminated.

At any time during the life tenancy the other beneficiaries and the life tenant may negotiate to terminate the life tenancy, usually with some payment to the life tenant. Alternatively if all the other beneficiaries agree, the home can be sold and another perhaps more suitable home may be purchased over which the life tenancy will continue. Legal advice should always be sought in these circumstances.

At the end of the life tenancy the home is dealt with according to what is stated in the will.

Partial intestacy and lapsed gifts

Where a will distributes only part of a deceased's estate (which means that the person died partially intestate), the part of the estate that has not been disposed of by the will is divided according to the statutory order. See Distribution of an intestate estate.

Where a beneficiary who is not a child of the testator dies before the testator and the deceased beneficiary's interest in the estate was a specific gift, the gift lapses and becomes part of the residuary estate. Where the deceased beneficiary's interest in the estate was a share of the residuary estate, the share must be distributed according to the statutory order.

If the deceased beneficiary was a child or a grandchild of the testator, the gift or share does not necessarily lapse if the deceased beneficiary has a child or children living at the date the testator's death. In this situaton, unless a contrary intention appears in the will, the gift or share would pass to and be distributed according to the deceased beneficiary's estate. It would not necessarily pass to that deceased beneficiary's children [Wills Act 1936 (SA) s 36].

If there is no Will

If the deceased has not left a will, the estate is distributed according to a statutory order, see Distribution of an intestate estate.

It is not possible to obtain probate if a deceased person has not left a will. Instead it is usually necessary to apply to the court to appoint an administrator to carry out the order of the court known as letters of administration, see Probate and Letters of Administration.

Distribution of an intestate estate

If there is no will to follow the estate is distributed in the order set out in Part 3A of the Administration and Probate Act 1919 (SA) known as the statutory order. No notice can be taken of any wishes of the deceased that are not expressed in a will. As with probate some assets can be handled without obtaining letters of administration but it is likely to be more difficult. The method of dividing an intestate estate under the Statutory Order is set out below.

Spouse or domestic partner only

If the deceased leaves a spouse or domestic partner (at the date of their death) and no children, the whole of the estate passes to the spouse or domestic partner [see Administration and Probate Act 1919 (SA) s 72G].

Who is a domestic partner?

A ‘domestic partner’ is is someone who was in a registered relationship with the deceased under the Relationships Register Act 2016 (SA) at the date of the deceased's death or someone declared to have been a domestic partner of the deceased under the Family Relationships Act 1975 (SA) at the date of the deceased's death [s 4].

A person may be declared to be a 'domestic partner' of another person under the Family Relationships Act 1975 (SA) if they had been living in a 'close personal relationship' and:

  1. this was for a period of three years or, during a period of four years for periods totalling not less than three years, or a child has been born (of whom they are the parents) OR
  2. the interests of justice require that such a declaration be made.

See Family Relationships Act 1975 (SA) s 11B.

What is a ‘close personal relationship’?

A ‘close personal relationship’ means a relationship of two adult persons (whether or not they are related by family and irrespective of their sex or gender identity) who live together as a couple on a genuine domestic basis. This does not include a legally married couple or a relationship where one of the persons provides care for a fee or reward [see Family Relationships Act 1975 (SA) s 11].

Declaration by the Court

A Court may make a declaration that two persons were domestic partners on a particular date. The Court must take into account all of the circumstances of the relationship, including any one or more of the following:

  1. The duration of the relationship
  2. The nature and extent of common residence
  3. The degree of financial dependence and interdependence or arrangements for financial support
  4. The ownership, use and acquisition of property
  5. The degree of mutual commitment to a shared life
  6. Any domestic partnership agreement made under the Domestic Partners Property Act 1996 (SA) or financial agreement made under the Family Law Act 1975 (Cth)
  7. The care and support of children
  8. The performance of household duties
  9. The reputation and public aspect of the relationship

See Family Relationships Act 1975 (SA) s 11B(3).

This legislation has application to the following matters affecting estates:

  1. The distribution of an intestate estate
  2. The person who may be entitled to take a grant of administration in the event that there is no will
  3. Rights to claim under the Inheritance (Family Provision) Act 1972 (SA)
  4. Superannuation (for South Australian Government public servants)
Spouse and domestic partner surviving

Where the deceased leaves a spouse* and domestic partner each is entitled to an equal share of the property, including any personal belongings of the deceased, that would have gone to a sole spouse or domestic partner [see Administration and Probate Act 1919 (SA) s 72H].

* Does not include a divorced spouse

Spouse or domestic partner and children

If the deceased leaves a spouse or domestic partner and children the estate will be distributed, pursuant to section 72G of the Administration and Probate Act 1919 (SA), on the following basis:

Estates less than $100 000

The spouse or domestic partner will be entitled to:

  • The whole estate, including personal belongings of the deceased (such as jewellry, household furniture, cars)

Estates more than $100 000

The spouse or domestic partner will be entitled to:

  • Up to the sum of $100 000, and
  • Half of the balance of the estate, plus
  • The personal belongings of the deceased

The children of the deceased will subsequently be entitled to:

  • The balance of the estate in equal shares

If the deceased and her/his spouse or domestic partner die within twenty eight days of each other it is taken that the spouse or domestic partner did not survive the deceased, and the estate is distributed as though there was no spouse or domestic partner [see Administration and Probate Act 1919 (SA) s 72E]. For discussion on adopted, illegitimate or step-children, see below - Children only.

Note: the value of an estate for the purposes of intestacy increased on 26 February 2009 from $10 000 to $100 000 [s 72G(2)]. The amount of $10 000 applies to deaths before this date.

Children only

Where there is no surviving spouse or domestic partner but there are surviving children of the deceased, those children receive equal shares of the estate. Grandchildren (by a child who has died before the deceased) take their deceased parent's share divided equally amongst them. But if the dead child was childless, that dead child's share is divided amongst the deceased's other children.

See Administration and Probate Act 1919 (SA) s 72I.

A person who has been adopted by the deceased is treated in all respects as if she or he were a lawful child [see Adoption Act 1988 (SA) s 9]. A person who has been adopted cannot share in her or his birth parent's estate unless the adoption occurred after the death of the birth parent.

All children whether born within or outside a legal marriage or qualifying relationship (defined as a marriage-like relationship), are entitled to share in the intestate estate [see Family Relationships Act 1975 (SA) s 6]. A child born outside marriage or qualifying relationship, however, may need to apply to the court for a declaration if the deceased parent has never acknowledged paternity [ss 8, 9]. A step-child (who has not been adopted by the deceased) is not entitled to a share of the estate in the event of intestacy.

The deceased's home

If a house is owned jointly by two people, and one dies, the house automatically belongs to the other. This cannot be changed by will. If an intestate person who owned a house in her or his sole name is survived by a spouse/domestic partner and children, and the spouse/domestic partner was living in the house at the time of the death, the spouse/domestic partner has the right to live in the house for three months and is also entitled to buy the house within the same time. In other words, as the value of the house will likely exceed $100 000, the surviving spouse/domestic partner must buy from the children their share in the house (that is, half of the balance divided amongst them) in order to continue to live in it. The three month period begins when the letters of administration are granted to the spouse/domestic partner. If someone else is the administrator the time begins when she or he gives proper notice to the spouse/domestic partner.

See Administration and Probate Act 1919 (SA) s 72L.

If the spouse/domestic partner cannot afford to buy out the children's share, she or he can apply to the court to postpone the sale of the house until the children have all turned 18. Another possibility would be for the spouse/domestic partner to make an application under the Inheritance (Family Provision) Act 1972 (SA) for a greater benefit.

Probate and Letters of Administration

Obtaining a grant of probate

In most cases there is no dispute as to whether a document is the last will of the deceased and probate is granted in common form without a court case.

Obtaining the grant now involves registering for (either personally or through a solicitor), and uploading relevant information into CourtSA online. For more information see the Probate Rule, Form and Procedure Changes on the Courts Administration Authority website.

There is currently no requirement for a separate executor's oath, but the original will of the testator must be uploaded, and the following documents are now generated automatically by CourtSA:

  • a draft grant of probate
  • a statement of assets and liabilities.

The filing fee varies from $837 to $3346, depending on the gross value of the deceased estate (as of 1 July 2019). See the Courts Administration Authority website for the current fees.

Where there is a dispute (see Contesting a will) which has been decided by the Supreme Court, the Court makes a grant of probate in solemn form.

Obtaining letters of administration

The procedure for obtaining letters of administration is similar to that for obtaining a grant of probate.

Obtaining the grant now involves registering for (either personally or through a solicitor), and uploading information into CourtSA online. For more information see the Probate Rule, Form and Procedure Changes on the Courts Administration Authority website.

For estates where the deceased died on or after 26 June 2014, the documents to be uploaded to CourtSA include:

  • an administrator's oath
  • draft letters of administration

A statement of assets and liabilities will now be automatically generated by CourtSA.

For estates where the deceased died prior to 26 June 2014, in addition to the above documents, the following documents must also be lodged:

  • an administration bond. For estates where the deceased died prior to 26 June 2014, this is the major procedural difference between an application for probate and letters of administration. An applicant for letters of administration must, together with either two sureties (or guarantors) or an approved insurance company as guarantor, lodge a bond (or guarantee) that the administrator will do the work of administering the estate properly. If the applicant chooses private sureties, each surety must have assets in her or his name at least equal to the value of the estate. Where the proposed administrator is the spouse, only one surety is required. In some circumstances a special affidavit can be completed and a bond can be avoided altogether
  • an affidavit of justification of sureties (This is not required if there is an application to dispense with the bond, or where the surety is an insurance company. In this case, an affidavit in lieu of guarantee is needed.)

In both an application for letters of administration andletters of administration with the will annexed, it is possible to avoid filing the affidavit of justification of sureties and the surety's guarantee if there is an application to dispense with the guarantee.

Obtaining letters of administration with the will annexed

Where there is a will, but no executor is appointed or the executor has died or is unwilling to act, letters of administration with the will annexed must be obtained. The procedures are very similar to obtaining letters of administration. The original will must be lodged with the application.

How long does it take?

Probate or letters of administration cannot be granted earlier than twenty-eight days after the death of the deceased. Normally the grant is made within two to five weeks of the application, depending on the workload at the Probate Registry at that time and whether all the papers are in order. If there is any doubt or difficulty about a will, the Registrar may require that further affidavits are filed.

Disclosure of assets to the court

Any person (including an executor, trustee, bank or other institution) who deals with an asset of the deceased without first either:

  • disclosing it to the court; or
  • being satisfied that the asset has been disclosed to the court

is guilty of an offence and liable to a fine of up to $2000 [see Administration and Probate Act 1919 (SA) s 121A].

If a formal grant of probate or letters of administration is not needed (see release of assets) assets need not be disclosed.

If a statement of assets an liabilities has already been generated by CourtSA, and something needs to be added or corrected, a paper Form 56 needs to be used at this stage. Eventually, this will be done through CourtSA as well. See Probate and CourtSA for more information.

Probate caveats

While a property caveat is lodged over real estate (see Law Handbook page on Caveats), a Probate Caveat is a specific type of caveat relating to an estate matter [see Administration and Probate Act 1919 (SA) s 26; Supreme Court Probate Rules 2015 (SA) Rule 52(1)]. A probate caveat prevents (at least temporarily) an executor or administrator from obtaining a grant of probate or letters of administration that would enable the finalisation of an estate. It allows the person lodging the caveat to raise concerns they may have (such as whether the testator lacked testamentary capacity, or whether there is a later will that revokes an earlier will, for example) before probate or letters of administration is granted.

Like property caveats, a person lodging a caveat should have grounds for doing so, and the caveat should not be used as a tool simply to frustrate the estate process. For example, a person should not lodge a caveat when they intend to make a claim for inadequate provision under the Inheritance (Family Provision) Act 1972 (SA), as this is better dealt with through other processes. The person lodging the caveat should be prepared to participate in Court proceedings if the caveat is challenged. Court costs may apply and such proceedings may be complex. As there are cost risks involved in lodging a probate caveat where there are no grounds to do so, any person wishing to lodge a probate caveat should first seek legal advice.

A probate caveat will expire 6 months after it is lodged, unless it is otherwise withdrawn, dealt with, or extended in that time [See Supreme Court Probate Rules 2015 (SA) Rule 52(4)].

All probate caveat lodgements and the filing of caveat documents is done online via the CourtSA website.

As of 1 July 2018, the fee for entering or withdrawing a caveat is $35.75. For current fees visit theCourt Administration Authority Website.

Executors and Trustees

Usually a person is appointed both as an executor and a trustee although there is a difference in these functions [Administration and Probate Act 1919 (SA) s 82]. The executor's role ends after all the assets of the estate have been collected, all the debts have been paid and the balance is distributed to the beneficiaries. Where the terms of the will create continuing duties, such as the support and maintenance of young children or the administration of money for someone's benefit, this role is performed by the trustee.

Duties of executors

An executor is responsible for seeing that the terms of the will are carried out. The basic duties of an executor are to collect the assets of the deceased, pay the debts and distribute the estate to the beneficiaries under the will. How this is done depends on the terms of the will and the nature of the estate. A person can be an executor and arrange for a lawyer to complete the legal documents and the search for assets or may do it without a lawyer. Being an executor may involve all or any of the following:

  • making the funeral arrangements
  • disposing of the remains of the testator
  • applying for a certified copy (not an extract) of the death certificate from the Registrar of Births, Deaths and Marriages ( Consumer and Business Services)
  • locating and identifying property belonging to the testator.

From the proceeds of the deceased's estate the executor must pay, in the following order:

  • the funeral expenses
  • the testamentary (legal) expenses
  • any statutory obligations (such as taxation)
  • any other debts.

This priority of payment is also followed when a person dies leaving more debts than assets.

Specific items left to beneficiaries are given to them, and in the case of items such as personal belongings, this may be done soon after the death of the deceased. However, if the deceased left gifts of money, the deceased's assets may have to be sold (realised) in order to obtain the money for distribution.

The selling of assets must be performed with diligence; in other words as soon as practicable. However it can often take up to one year to distribute an estate. If an executor does not act diligently, the beneficiaries may complain to the court. This is the only right of a beneficiary before distribution, as the beneficiary does not own the property until the executor distributes the estate.

Problems with executors

It is usually safest to appoint more than one executor, except in the simplest of cases.

Where no executor is appointed in a will

Where no executor is appointed in a will, the court may grant the administration of the estate to a person entitled to the residue of the estate or (if appropriate) some other share of the estate. If the beneficiaries so request, the Public Trustee or a private trustee company may be appointed by the court to administer the estate. If there is no person in this State over the age of eighteen years willing or able to act as executor, the court may order that the administration be granted to the Public Trustee.

A person appointed as executor does not have to accept that responsibility [ Administration and Probate Act 1919 (SA) s 36]. If a person renounces (refuses) such an appointment, the other executor named in the will becomes the sole executor. If no other executor is named in the will, the procedure above applies. This sometimes happens where the will is old. If there is no living executor, the procedure outlined above following applies.

Where a sole executor dies

If the sole executor dies after the testator and after probate is obtained but before administration is complete, the executor of the deceased executor's estate becomes executor of the deceased's estate. The issues raised by the death of an executor are quite complex depending on the stage that matters have reached and legal advice should be sought.

Where the sole executor is under 18 years

Where the sole executor is under 18 years, the court appoints the child's guardian as executor until the child reaches 18 years of age.

Where the executor has breached his/her duties

Where an executor has breached their duties, an action can be taken against them in the Supreme Court. An executor’s duties are to preserve, protect and administer the estate diligently so where an estate has suffered waste as a result of deliberate or negligent actions on the part executor this will amount to a breach. Any action taken will be against the executor personally, not the estate. It will not be a defence that the estate has been fully administered and there are no assets to meet the claim. If found liable, the executor must make good any loss to the estate.

There are several types of breach and these can often overlap. The main categories of action against an executor are:

  • Misappropriation
  • Maladministration
  • Breach of trust

Misappropriation occurs when an executor uses an estate’s assets to pay his/her personal liabilities or fraudulently disposes of them for a profit.

Where assets have been dealt with in a manner other than provided in the will or by law, an action for maladministration may sought. Examples of maladaministration include a failure to pay and discharge debts; selling property undervalue and using assets for personal use. It is not a defence to an action for maladministration that the executor acted in good faith.

A breach of an executor’s duties can also result in an action for breach of trust. For example, an executor who fails to demand and enforce payment of a debt owed to an estate will be in breach of his/her duty of care. If a loss is suffered by the estate as a result of the failure to enforce the debt the executor will be liable to repay the loss. Further examples of breach of trust include:

  • Failure to observe the provisions or directions in a will;
  • Where an executor makes a profit whilst acting in their capacity as executor;
  • The making of unauthorised investments resulting in a loss;
  • Use of estate to pay for executor’s personal debt.

This area of law is extremely complex so legal advice should be sought if considering any application to the Supreme Court.

Payment of executors

The deceased may specifically state in the will that the executor is to be paid for the work of administering the estate. Even if the will makes no such provision, the executor may apply to the court for a commission for the work performed [Administration and Probate Act 1919 (SA) s 70]. Generally a lawyer who acts as an executor will not be entitled to a commission in addition to the normal legal fees for such work.

A legacy or gift to an executor in the deceased's will is usually construed as being dependent on the performance of the executor's duties. If an executor dies without carrying out those duties, the legacy might fail.

Duties of trustees

Some of a trustee's duties and responsibilities are set out in the Trustee Act 1936 (SA) while the great bulk are found in the common law. Sometimes it is necessary or advisable to add to these, or vary them, in the terms of the will. Generally, trustees have a high duty to act honestly and in good faith when carrying out particular duties of trust given to them under a will.

A beneficiary who is dissatisfied with the performance of a trustee may complain to the court.

Payment of Debts

From the proceeds of the deceased's estate the executor must pay, in the following order:

  • the funeral expenses
  • the testamentary (legal) expenses
  • any statutory obligations (such as taxation)
  • any other debts.

This priority of payment is also followed when a person dies leaving more debts than assets.

Before the assets of the deceased's estate can be distributed to beneficiaries, the funeral expenses may have to be paid. The person who orders the funeral is responsible for paying the account but is entitled to be repaid for the reasonable cost of the funeral before other creditors are paid . A testator often says in the will how the funeral expenses are to be paid.

Creditors of an estate must wait until the assets of the estate are available to the executor or administrator and reasonable funeral and testamentary expenses are paid before they may receive payment.

The will usually states which part of the estate must be used to pay the debts, including the funeral expenses. Usually the residuary estate (those assets not specifically left to a particular person) is used for this purpose. If the residuary estate is insufficient to pay the debts, other specific gifts in the will may be used to bear these costs proportionately. There is a particular order for payment of debts in these circumstances.

Bankrupt Estates

If the deceased had more debts than assets, it is necessary to deal with the estate in a different way from a normal administration. In these circumstances:

Sometimes the proceeds of the deceased's life insurance policies are preserved from the bankruptcy. If so, they are distributed according to the will or the intestacy rules. Whether this is possible depends on whose life is actually insured, the type of risk insured against and how long the policy has been in force before the date of bankruptcy. Of course if the policy does not belong to the deceased the proceeds are not available for the deceased's creditors. They would belong to the owner of the policy. If for example, the spouse has insured the life of the deceased, the spouse will be entitled to the policy proceeds.

Release of Assets

When an estate is very small, there may be no need to obtain a grant of probate or letters of administration. This depends on the amount of the estate, how the money is held and certainty about the existence and operation of a will. It also depends on whether or not it is possible to get hold of the deceased's assets without a grant of probate or letters of administration. Where this is not possible, the procedures for dealing with an estate must be followed. Where it is possible, there is no need to employ a lawyer, although sometimes it may be helpful. It is not possible to say precisely when a grant of probate or letters of administration are not needed. The following is a guide only.

Banks and building societies

If the deceased had a bank account, the bank may require probate or letters of administration before the executor can close the account. It is worth enquiring with the financial institution to see whether money can be released without probate or letters of administration. Requirements vary from institution to institution and it depends on the value of the estate.

If an account is in the deceased's name only, financial institutions will usually release enough to cover funeral expenses, although the amount released may vary. Generally, institutions will pay a funeral director's account that is produced.

Financial institutions may release the money in an account to the surviving spouse or children without probate being obtained if the amount does not exceed a certain limit, depending on the bank).

Financial institutions will usually release the funds of deceased depositors to an executor or beneficiary if the account is small and if she or he produces:

  • the will
  • a certified copy of the death certificate
  • sometimes, consent and indemnity forms from other members of the family or next of kin who consent to the executor obtaining money
  • sometimes, proof of payment of funeral expenses or the unpaid account.

All the money in a joint account automatically goes to the survivor when one of the account holders dies.

Real property

Where the deceased owned a house or land or an interest in a house or land (such as a mortgage or lease), in her or his name only, it is necessary to obtain a grant of probate or letters of administration. This also applies where the deceased owned an interest in land as a tenant in common.

No grant of probate is required to deal with a house or land owned as a joint tenant. A surviving joint tenant automatically gets the whole property when one joint tenant dies. The deceased person's interest does not form part of the deceased estate.

Despite this automatic operation, the death must be noted on the certificate of title to the property before any further dealing with the property can take place. The surviving joint tenant must lodge an Application to Register Death with the Land Services Group Office, on the form prescribed by the Register-General.

It is strongly advised that a conveyancer or lawyer prepare and lodge the application, because the identity of the surviving joint tenant must be verified as part of the application. There is a fee payable for lodgement of the form.

Motor vehicles

The only requirement for the transfer of a motor vehicle to a beneficiary is the changing of the name of the owner for registration purposes. A grant of probate or letters of administration is not needed for this. An application for transfer of ownership form must be lodged with Registration & Licensing.

In order to obtain a reduction of stamp duty, the beneficiary must sign the declaration printed on the back of the form which states that the vehicle is transferred in the terms of the will of the deceased owner and a reduction of stamp duty is claimed. There is also a small transfer fee payable.

Personal goods and belongings

Generally there is no special procedure required for the transfer of these items.

Insurance companies

Many people have life insurance policies which mature on their death. Generally, insurance companies are prepared to pay out on these policies without a grant of probate or letters of administration when the sum is below a certain amount.

Hardship

No beneficiary has a right to any of the deceased's property until the executor distributes the estate. This can cause hardship if the main beneficiary is a spouse or domestic partner who has no other source of income.

A surviving spouse or domestic partner may be entitled to social security assistance (see PAYMENTS - CENTRELINK, and a surviving spouse or domestic partner may be able to obtain a loan, using the estate as security. In some cases an executor, such as the Public Trustee, will make a partial distribution, or an advance, to a surviving spouse or domestic partner.

Such hardship may be avoided by keeping a joint bank account. On the death of either, the whole of the account passes to the survivor.

Legal Actions

Under the Survival of Causes of Action Act 1940 (SA) [s 2] with some exceptions, legal actions by or against a person may be continued after that person's death.

Costs

Fees

An application for a grant of probate or letters of administration is subject to a fee which must be paid when the application is lodged. To check the current fee, see the information on the Courts website.

Obtaining a death certificate

In many of the procedures, a certified copy, or an extract, of a death certificate is required to prove a death. These are obtained from the Registrar of Births, Deaths and Marriages. Aside from applying online, a death certificate or extract may also be requested by mail. In this case, sufficient details should be sent, such as the deceased's name, address and age and the date and place of death.

It takes about three days to obtain a certificate or extract if requested personally and about ten days if requested by mail. Check the SA Gov- Applying for a Death Certificate Website for the current fee payable.

Taxes

There is no longer any kind of death duty in Australia. If a person died before 1980 and the estate has been left unadministered, death duties may be payable. Death duties may be payable in another country if assets are owned in that country.

Executors must file a date of death taxation return. The trustees of a deceased estate must file taxation returns on behalf of an estate where sufficient income has been earned for taxation to be payable or if a refund is sought. While no capital gains tax is payable for people who died before 20 September 1985, where people have since died capital gains tax may be payable by whoever sells the asset.

Lawyers

Legal fees for administering an estate vary according to the amount of work involved. This depends on the nature and number of assets and, to some extent, the terms of the will. Lawyers charge for obtaining a grant of probate or letters of administration and for subsequent work in the administration of the estate at commercial rates according to the conveyancing and general scale of costs under the Supreme Court Civil Rules 2006 (SA) [sch 1], or at a rate agreed between the solicitor and client in a costs agreement.

The Law Society of South Australia (08 8229 0200) can supply the names of lawyers who do probate work.

Firms that do probate work should be able to give you an idea of the potential range of costs for administering an estate.

Public Trustee

The Public Trustee is a statutory corporation under the control of the Minister for Consumer Affairs. Its power includes administering deceased estates. The trustee charges for work done as an executor for its clients.

Since 1 July 2019, eligibility criteria has applied to Public Trustee services. Please see the Public Trustee websitefor more information.

Concession holders and people with protection or administration orders issued by the South Australian Civil and Administration Tribunal (SACAT) or the courts may continue to access the Public Trustee’s free service to manage Wills and Enduring Power of Attorney. Non-concession holders are no longer eligible to access the Public Trustee for new Wills and Enduring Power of Attorney or to make changes to existing Wills and Enduring Power of Attorney.

When deciding whether to appoint the Public Trustee if eligible (or any trustee company) as executor, or to appoint an individual who may need to employ a lawyer to administer the estate, it is of value to compare the potential fees and charges of the Public Trustee with what a lawyer may charge.

The cost of administering an estate depends on the value of the estate and the amount of work involved.

For any estate valued over $5000, the rate charged by the Public Trustee is 4.4% (GST inclusive) of the value of the estate up to $200 000. The rate reduces for that part of an estate above $200 000, but an additional lump sum is also charged for estates over $200 000. There are minimum set rates for an estate less than $5000. See the Public Trustee's publication 'Fees and Charges'.

Note that the value of the estate for calculating the commission is the value of the assets before debts are taken into account.

Different rates apply to the transfer of a matrimonial home to a surviving spouse and to the collection of rent and other income. Further charges may be made for the preparation of documents or for other services additional to a normal administration. There is no charge for joint tenancy property.

The Public Trustee drafts wills free of charge for people who are eligible provided it is appointed as executor.

See the Public Trustee website for more information.

Private trustee companies

There are a number of private trustee companies in South Australia, each of which is authorised by a special Act of Parliament to administer deceased estates and to conduct trustee and agency businesses generally.

Private trustee companies charge a rate that is generally slightly higher than that of the Public Trustee. The rates charged vary from company to company. Reduced commissions are charged in certain cases. Some trustee companies charge for preparing wills. Trustee companies will act jointly with a private executor. People considering having a trustee company prepare a will and administer an estate should ask what the charges are.

Inheritance

Domestic partners

Where there is no will (an 'intestate estate')

A domestic partner is entitled to inherit an intestate estate (see If there is no will - distribution of the estate). There is no requirement that a person be legally married to the deceased in order to inherit.

For the purposes of inheritance of an intestate estate a domestic partner may be entitled to an equal share with a lawful spouse. see if there is no will - distribution of the estate.

Where there is a will

A domestic partner may also claim under section 6 of the Inheritance (Family Provision) Act 1972 (SA) as a spouse of the deceased, if she or he believes the will makes inadequate provision for her or him see Contesting a will - Inadequate Provision.

Adopted children

Under section 9 of the Adoption Act 1988 (SA) an adopted child of the deceased is treated as a natural born child of the deceased and ceases to be the child of any previous birth or adoptive parents. An adopted child does not therefore have a claim of inheritance from a birth parent. An exception applies where one of the parents of a child dies and the child is adopted by the new spouse of the surviving parent.

Ex-nuptial children

Under section 6 of the Family Relationships Act 1975 (SA) all children, whether born in marriage or not, are treated the same when dealing with a will, unless the will states otherwise.

Unless there is something to the contrary in a will executed before the Family Relationships Act 1975 (SA) commenced (29 January 1976), any reference to children will only include children born within marriage.

Step-children

A step-child is not the child of the deceased and so does not receive any interest, as a child, in the deceased's estate either in the will or, if there is no will, in intestacy. However, step-children can, in some circumstances, make claims under section 6(g) of the Inheritance (Family Provision) Act 1972, see Contesting a will.

Half-brothers and half-sisters

A reference to a brother or sister in a will generally includes a half-brother or half-sister. This however, is a question of interpreting the will.

Where there is no will, the Administration and Probate Act 1919 (SA) draws no distinction between full and half-blood [s 72]. So a half-brother or half-sister would qualify, in the statutory order of distribution, for her or his half-brother or half-sister's estate.

    Estates  :  Last Revised: Tue Jan 7th 2020
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.