Grant of Probate (Executor)

How long do family members have to make a family provision claim in South Australia?: Section 118(1) of the Succession Act 2023 requires an application for a family provision order to be made within 6 months after the grant of probate or administration. The Court may extend time, but an application for an extension must be made before the final distribution of the estate, and a distribution made before that application is not disturbed (section 118(4) and (5)). Executors therefore usually hold the estate until the 6 months have passed.

What if the will is informal, lost or needs correcting?: A person must not apply for a grant while holding an informal testamentary document that may be entitled to proof under section 11 (rule 356.1(3)). The Court must first decide on it in a pre-grant proceeding started by an Originating Application (Form PROB1 or PROB2) and affidavit, which the Registrar may determine where everyone adversely affected consents (Form PROB7). The same route is used to admit a copy of a lost will (rule 353.7) and for rectification before a grant (rule 353.10).

Jurisdiction: Supreme Court of South Australia, testamentary causes jurisdiction, exercised mostly by the Registrar of Probates through the Probate Registry. Contentious probate actions and family provision claims are not governed by Chapter 25 but by Chapter 19 Part 2 or Chapter 20 Part 4 of the Uniform Civil Rules 2020 (rule 351.1(2)).

The Process at a Glance: The file opens with the executor's instructions, the original will and codicils are located and secured, and the death certificate and a full list of assets and liabilities at the date of death are gathered. Every executor named in the will is accounted for, renunciations are obtained where an executor will not act, and any informal, lost or defective will is dealt with by a pre-grant court order. The executor marks the will before an authorised witness, the grant application is lodged on CourtSA with the statement of assets and liabilities, and the original will is delivered to the Registry. After the grant issues the executor collects the estate, registers the transmission of land, discloses any further assets, gives notices to creditors and claimants under section 29 of the Trustee Act 1936, pays debts and tax, waits out the 6-month family provision period, then accounts to the beneficiaries and distributes.

Key Legislation: Succession Act 2023 (SA) - s 8 (formal validity), s 11 (informal documents), s 16 (alterations), s 22 (rectification within 6 months after the grant), ss 45 and 46 (deposited wills), s 62 (caveats), s 66 (effect of renunciation), s 71 (statement of assets and liabilities and no disposal of an undisclosed asset), s 72 (persons dealing with assets), s 73 (deemed grant to the Public Trustee for small estates), s 76 (land vests in the executor), s 81 (general duties), ss 82 to 88 (sale of land, payment of debts and insolvent estates), s 95 (advice or direction), s 96 (commission), s 98 (remedies against an executor), s 99 (interest on legacies), s 100 (small payments without a grant), ss 115 and 118 (family provision). Uniform Civil Rules 2020 Chapter 25 (rr 351.1 to 358.2). Trustee Act 1936 (SA) - s 29 (distribution after notice). Real Property Act 1886 (SA) - ss 175 to 179 (transmission to executor) and s 188 (survivor of joint proprietors).

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