Probate and Deceased Estates in South Australia
This article will outline the basics of probate in South Australia and how a deceased estate is administered. It assumes that the deceased person died with a valid Will.
Locate the Will and contact a lawyer
The first thing to do is locate the Will. A lawyer should be engaged and the person who is named in the Will as the executor should be contacted (if different to the person who has the Will). The executor will work with the lawyer to administer the estate. The role of executor is hands-on and cannot be outsourced to the lawyer or any other person. However, the lawyer will provide guidance to make the matter easier (for example, letting the executor know what is needed and preparing forms that need to be signed).
Locate other pertinent information
Aside from a Will, many other things are needed. These include:
- The original death certificate (usually arranged by the funeral director)
- Bank account statements
- Home loans statements
- Copies of certificates of title for assets (such as land)
- Registration papers for vehicles and vessels
- Superannuation statements
- Insurance policies (home, contents, car etc and especially life insurance)
- Personal loan and credit card statements
- Phone and internet statements
- Share certificates/dividends statements (and registry details)
- Tax returns and records including tax file number and ABN (if applicable)
- Contact details and dates of birth of spouse, children and grandchildren
- Residential tenancy agreements
- Retirement village rental agreement
- Aged care facility agreement
Prepare a list of assets and liabilities
The executor should prepare a rough list of all assets and liabilities owned by the deceased person. Common assets includes:
- Land
- Shares
- Bank accounts
- Cars
- Other vehicles (motorcycles, vessels)
- Personal possessions
- Business assets (interests in partnerships etc)
- Amounts owing to the deceased (loans, tax credits)
Common liabilities include:
- Mortgages over land
- Margin calls over shares
- Personal loans (secured and unsecured)
- Credit cards
- Rates and taxes over land
- Direct debits (gyms etc)
- Business debts (overdrafts, lines of credit)
- Tax debts (personal income tax, GST etc)
- Fines and penalties
The executor must specify which assets and liabilities are jointly owned (and if so, who are the other joint owners).
A more specific list will be prepared in conjunction with the lawyer if probate is needed.
Is there life insurance?
The executor must investigate whether there is life insurance. If a financial planner or insurance broker was used, contact that person and inform them of the death.
Start notifying organisations of the death
The following is a list of organisations that should be notified:
- Banks
- Insurance Companies
- Federal Government departments, including:
- Australian Tax Office
- Medicare
- Centrelink
- Veterans Affairs
- Electoral Office
- State Government departments, including:
- Service SA (for vehicle registrations)
- Consumer and Business Services (for any business registrations such as liquor licence, building trade registration, real estate and conveyancing registration etc)
- Share registries, such as:
- Advanced Share Registry Services
- Automic
- Boardroom
- Link Market Services
- Computershare
- Accountant
- Financial planner
- Doctor and dentist
- Phone company
- Internet company
- Local council
- Gas, water and electricity providers
- Libraries and associations/clubs
There is a website located at www.deathnotification.gov.au that acts as a central notifying point for a number of organisations, including some banks but it does not cover all the above. In addition, some organisations may still require or request a separate notification with supporting documents.
Is Probate needed?
Once the executor and the lawyer have a comprehensive list of what is owned and owed, and have contact the various organisations, the lawyer can determine whether probate is required. Some organisations, such as banks and share registries, have specific policies as to whether probate is needed based on the size of the assets involved. Generally a larger asset size needs probate. Otherwise, it may be sufficient to provide a copy of the Will and death certificate.
If land is owned solely by the deceased, or as a tenant in common, then probate is needed to deal with that land irrespective of the market value. A copy of probate, together with the Will and death certificate, will be lodged by the lawyer at the Land Titles Office with a document called a ‘Transmission Application’.
Jointly owned assets
Jointly owned assets, like bank accounts and real estate owned as joint tenants (but not tenants in common), do not need probate and can usually be dealt with by a copy of the Will and death certificate. The asset will then pass to the surviving joint owner.
If the deceased was the last surviving sole owner, then probate may be needed as stated above.
Applying for probate
The executor will work closely with the lawyer to obtain probate. Probate is a grant from the Supreme Court providing that the Will of the deceased is valid and that it may be dealt with by the executor. With probate, the executor can collect the assets, pay the debts and distribute the balance in accordance with the terms of the Will. Larger estates almost always need probate.
Probate is submitted online, with the exception of the original Will which is given to the Probate Registry. A probate application requires the following:
- Scanned copies of the Will and death certificate
- Disclosure of assets and liabilities (using the online form in CourtSA) – the ‘rough’ statement prepared by the executor earlier will be formalised and finalised at this stage. The values are values as at the date of death.
- A draft grant of probate (in accordance with form 36)
An oath by the executor in support of the grant is no longer required (Practice Note 3 of 2018).
The above documents are lodged online through the CourtSA portal. After lodging the grant application, CourtSA will automatically create an Original Will Coversheet, which is then printed. In the space provided on the Original Will Coversheet, the lawyer will provide details of what will be enclosed in the envelope (usually the Will and any Codicils). The printed and completed Original Will Coversheet is stuck on a white A4 envelope and the Original Will (and codicils) are placed in the envelope without folding. It is then lodged either in person or by registered post to the Probate Registry at Sir Samuel Way Building, 241-259 Victoria Square Adelaide 5000.
Fees for probate
Fees depend on the gross value of the estate and as at 1 July 2019 are set out below:
How Long will it take?
Let’s break it down to 2 stages:
- The legal side
- The application side
The legal side is all things necessary by the executor and lawyer to prepare the application for probate. This depends on how complex the estate is and how easy it is to access records of the deceased.
The application side is once the lawyer and executor have done all the work and submitted the application to Court. This depends solely on the Probate Registry. It is not possible to provide a definitive timeline as the response depends on a third party.
Outstanding Tax
Aside from probate, another matter that requires attention is finalising the deceased’s tax return.
Once the ATO has been notified of the deceased person’s death, the executor may need to lodge:
- a final Tax return for individuals (called a ‘date of death tax return’) on behalf of the deceased person (or advise the ATO that a tax return is not necessary)
- one or more prior year Tax return for individuals for the deceased person.
You may also need to lodge a Trust tax return for the estate – see the following ATO link: Doing Trust tax returns for a deceased estate.
You can only lodge tax returns for a deceased person using a paper tax return.
A deceased person’s individual tax returns are prepared then assessed in the same manner as when they were alive. For example:
- the general individual tax rates with the full tax-free threshold apply if they are an Australian resident
- Medicare levy and Medicare levy surcharge may also be payable.
You need to lodge a date of death tax return on behalf of the deceased person if they:
- had tax withheld from the income they earned
- earned taxable income exceeding the tax-free threshold
- had tax withheld from interest or dividends because no TFN was quoted to the investment body
- lodged tax returns in prior years (that is, for income years before the income year in which they died)
- should have lodged tax returns in prior years.
If the deceased person should have lodged prior year tax returns but didn’t, then you need to lodge the tax returns on their behalf.
To complete a tax return you will need their Tax File Number. The TFN is kept very confidential by the ATO. If you cannot find it, you will need to first notify the ATO officially and then ask them for it. This link shows how to officially notify the ATO and request a TFN for a deceased.
Conclusion
There are several matters that need consideration when administering a deceased estate. Bosco Law is able to navigate the process to make deceased estate administration smooth and efficient. We do this by studying what is needed, getting as much information upfront and being organised.
For assistance please contact Peter Bosco on 0422 173 574 or peter@boscolaw.com.au
This article contains general information for informational purposes. It has not been tailored to your individual circumstances. It is not legal advice and you should not rely on it to make legal decisions.