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MY sister died in South Australia on 31/8/2017 I am the

Customer Question
MY sister died in...

MY sister died in South Australia on 31/8/2017 I am the executor and sole beneficiary. I live in Darwin. She had a Bank SA account with approx. 3

Lawyer's Assistant: Estate laws vary by state. What state are you in?

$330,000 and AMP investments approx. $600,000 can I handle this myself or do I need a lawyer? Eileen Hall

Lawyer's Assistant: What documents or supporting evidence do you have?

Customer:*****Leanyer N.T. 0812 (###) ###-####**@******.***

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

How much would a lawyer cost to do the probate

Lawyer's Assistant: It can cost anywhere from $10 to $100, depending on the type of issue and how much of the Estate Lawyer's time your question is expected to take (how complex and lengthy an answer you require).

My sister died in south Australia, I live in Darwin she has a Bank SA account of approx. $330,00 and AMP investments approx. $600,00 I am the executor and sole beneficiary do I need a lawyer to do the probate

Submitted: 7 months ago.Category: Australia Law
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Answered in 7 minutes by:
10/4/2017
Solicitor: John Melis, Lawyer replied 7 months ago
John Melis
John Melis, Lawyer
Category: Australia Law
Satisfied Customers: 2,810
Experience: Principal Lawyer at Legal AU Pty Ltd
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Dear customer, my name is***** solicitor, thank you for using Just Answer, I will assist with your question today. Please allow me a few moments to review your post and I will respond accordingly. Kind regards ***** *****

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Solicitor: John Melis, Lawyer replied 7 months ago

Dear customer, I am sorry for your loss. In relation to your important matter, as you are executor you may handle the probate of your sisters estate by filing for probate in Adelaide. There are various procedures to follow. I will list some below. As the estate is large it is recommended that you do consider the assistance of a solicitor.

As managing probate can be a little complex, and after you have reviewed the summary material below, I would be pleased to discuss the probate process and any questions you have by telephone if required.

All basic applications for probate require the same four documents. Additional documents may then be required to satisfy the court as to other issues.

The four basic documents are:

  • •Form 37 — Executor's Oath;
  • •Form 36 — Grant;
  • •Form 55 — Affidavit of assets and liabilities; and
  • •Form 57 — Certificate of disclosure Registrar’s certificate (for each asset requiring a disclosure certificate).

A death certificate will also now need to be lodged.

Rule 11 of the Rules deals with the requirement for Form 37 — Executor's Oath.

This affidavit contains the evidence which is required to support the application for probate. The original will is referred to in this affidavit but is not annexed.

Rule 13 of the Rules deals with the description of the executor in the Oath including:

  • •the capacity in which the executor claims the grant is now described as “the executor as described in the will”: r 13(1);
  • •If the executor is the widow or widower or related in blood to the testator then this relationship must be disclosed in the Oath: r 11.08 of the Rules;
  • •the correct name of the executor if it differs from the will. Evidence of change of name may be required and such evidence can be included in the oath or given in an affidavit of identity. The evidence will usually be annexed to the oath or affidavit (the form of affidavit is found in Form 5 or 6 of the Rules) — Affidavit of identity r 13(2) and r 13(3)of the Rules; and

•If there is more than one executor then they must be named in the order in which they appear in the will: r 13(6) of the Rules.

Where there is a codicil (or more than one) then the Oath and the grant will refer to “paper writings” rather than “paper writing”.

The executor is required to mark (sign) each document, usually on the backsheet of the will (and codicil(s)). If a single will is not stapled then each separate page must be marked (signed) by the executor. The witness to the Oath must also sign below the signature of the executor, write their name, provide their authority (eg a commissioner for taking affidavits) and the date.

​If the probate documents are to be signed by an executor who is interstate or overseas then it is of particular importance for the witness to those documents to be aware of the requirements of the Probate Registry, namely, that the witness disclose their authority and the wording that should be used.

The court will use the Form 36 — Grant to prepare the grant and therefore it is important for the information contained in it to be correct.

Rule 8 deals with the requirements for Form 55 — Affidavit of assets and liabilities. This form is used for those who died on or after the 1 July 1987.

The assets are separated by state, with SA assets first and then those outside of SA. The assets outside of SA will need to disclose where they are located (ie which state, territory or country).

The known or estimated value of the asset must be given and the source of the value must be disclosed.

For real estate, the valuer-general’s valuation is commonly used.

For furniture and effects, motor vehicles, boats, trailers the executor’s estimates are usually used.

For shares, the date of value (this will usually be the date of death) and the source should be provided. These can now in most cases be obtained online.

Jointly owned property is not recorded in the assets as they are not assets of the deceased.

If superannuation benefits are payable to the estate they should also be disclosed. If this has not been determined at the time of making the application then the item can be disclosed in the schedule of the assets noting that a determination has not be made, and what the value is but the value is not included in the far right hand column.

Assets held on trust by the deceased can be included if they require disclosure but the value is not included in the far right hand column.

Note C to Form 55 provides that if the application is lodged 12 months after the date of death then the value to be disclosed is that at the date of the application.

Liabilities of the deceased are recorded in the statement under the headings secured and unsecured. The amount of each liability is disclosed along with a description. Funeral expenses are also included even if they were prepaid.

Procedure to be followed when lodging probate application with the Supreme Court

The following documents must be filed with the court:

  • •draft grant of probate;
  • •executor’s oath;
  • •original will and codicils;
  • •affidavit of assets and liabilities;
  • •Certificate of disclosure Registrar’s Certificate for each asset requiring disclosure;
  • •original death certificate (or certified copy if application lodged by legal practitioner);
  • •any other affidavits as required in the client’s particular circumstances; and

•bank/trust cheque in payment of probate application filing fee.

​​

If you would like to discuss this matter further by telephone, I welcome you to request those services.

If you have any further questions, I would be pleased to answer those for you.

Please don’t forget to leave positive feed back.

Kind regards
John Melis

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