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How to find a will of a deceased person in south australia

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A Will is a written document that sets out your wishes for the distribution of your property sometimes called your 'estate' when you die. It looks after your family and it is your opportunity to make sure things go smoothly on your death. There are strict legal formalities to be complied with in making a Will. If these are not complied with then this creates many difficulties on your death and the risk that the paper that you signed will not be accepted as your Will.

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Information for Beneficiaries

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The law concerning wills is contained in the Wills Act SA. Many of the legal terms used in this topic are highlighted and explained in our list of Legal Terms. Some of the terms used include testator , executor and administrator. A testator is a person who has made a will. An executor is the person who is appointed in a will to deal with an estate and an administrator is the person appointed by the court to deal with the estate of a person who dies without having made a valid will.

Making a valid will is the only way people can be sure that their property will be distributed according to their wishes. Even if the statutory order see If there is no will exactly describes the way a person wants their property distributed, the estate will usually be dealt with more quickly and cheaply if there is a will.

In making a will, a person must have the testamentary capacity mental capacity to know what he or she is doing. They must know that, by their actions, they are making a will which will distribute their property after death. A court or tribunal may limit a person's will making capacity - for example, where a protection order is made under the Aged and Infirm Persons Property Act SA or where directions are made in relation to a protected person under the Guardianship and Administration Act SA [s 56].

Where there is any doubt about a person's mental capacity great care must be taken when making a will as it may be subject to challenge. It is always wise in such a case to have the will prepared professionally, and to have it witnessed by the person's doctor who could testify later as to the person's mental capacity. Anyone over 18 years, with the required mental capacity, can make a will in South Australia [ Wills Act SA s 5 1 ].

People under 18 years can make a will if they are or have been married or with the permission of the Supreme Court. The Supreme Court may also authorise a will or an alteration to be made where a person lacks testamentary capacity mental capacity [ Wills Act SA s 7]. There is no legal requirement that a lawyer must prepare a will.

However, it is best to have someone with legal knowledge, such as a lawyer, the Public Trustee or a private trustee company, to make a will. Some trustee companies may make wills free of charge while others charge a fee. All trustees may, if they wish, charge a commission to administer the estate if appointed executor. A lawyer's charges will depend on how long it takes to prepare the will.

The more complex a will is, the more expensive it will be. When choosing whether to use a lawyer, who charges at the time of making the will, or a trustee company which may have no charge for making the will, but charge a commission for the administration of the estate, it is worth being aware of the real cost of the commission method.

A will should be kept in a safe place. It is wise to make a photocopy of the will as the original may become lost. A note should be made on the copy of where the will is kept. It is wise to let the executor of the will know where it is located. Banks and insurance companies hold wills, usually for a small charge. Trustee companies will usually only hold a will if they are named as an executor.

Lawyers will usually hold a will if they have prepared it for a client, even if they are not named as executors. This service is available for legal practitioners to register wills and to search for missing wills.

From 1 December , legal practitioners may publish the name and date of birth, and the date of the will of their client, without breaching confidentiality , in the following situations:. For a will to be valid it must [ Wills Act SA s 8]:. If these requirements are not met, the estate may be dealt with as if there were no will see If there is no will , unless the court orders otherwise. These requirements do not apply to privileged testators, that is, members of the defence forces in actual military service, or sailors at sea.

Privileged testators may make nuncupative oral instead of written wills [ Wills Act SA s 11]. If a will fails to meet all the above requirements, the court may still consider the will to be valid. If the court is satisfied that the document expresses the testamentary intentions of the deceased, it can admit that document to probate as a will of the deceased person [Wills Act SA s 12 2 ]. An application will need to be made to the court. Applications may be quite expensive and not all are successful, so it is important that all the formal requirements are met when making a will.

The summons must be supported by an affidavit setting out the facts upon which the applicant relies. In addition, it must include the written consents to the application of all persons not under a disability who may be prejudiced by the admission of the document to proof [r Generally, a will made overseas that is valid according to the law of the country where the will was made, will be accepted in South Australia, even if it is not valid according to South Australian law.

In other words, if a migrant's will is valid in the migrant's old country, it will be granted probate in South Australia [Wills Act SA ss 13,14].

A will need not to be in English in order to be accepted in South Australia. However, if it is not in English, it must be translated, and an affidavit of translation must be made, before probate will be granted. It is simpler if the will is written in English and translated to the testator. While a beneficiary or a beneficiary's spouse may witness a will in South Australia [ Wills Act SA s 17], it is preferable to avoid this situation , particularly if the will may be contested.

Wills can be altered before signing, but the testator, and both witnesses, must sign or initial in the margin or near the alteration. If this is not done, the court will assume that the alteration was made after the will was signed and the alteration will not be effective unless the court waives the formalities, see Waiving formalities.

Once a will has been signed there can be no alteration, either by crossing out or writing in new clauses, unless the new clauses are executed in the same manner as a will, see Updating a will. A will does not need to use special words. All it has to say is that it is the will of the testator , who wants her or his property to be distributed in a certain way. It is most important that the will be worded in clear, unambiguous language. However, there is one clause that should always be inserted in a will.

This is the attestation clause the part of the will that deals with the witnessing of the testator's signature. If there is no attestation clause, an affidavit made by at least one witness , giving details of how the will was signed and witnessed, will be needed when the application for probate is made after the testator's death. If no witness is conveniently available, the affidavit may be by someone else who was present when the will was executed [ Supreme Court Probate Rules SA r 18].

Sometimes the witnesses and those who were present when the will was executed are dead or have moved, and so the signature cannot be proved. In either case, there will be great difficulties in obtaining the grant of probate if there is no attestation clause. Any will which is made for a testator who is blind, unable to write because of illiteracy or some other disability , or unable to understand English, needs to be dealt with most carefully.

Professional assistance is recommended in these cases. An example of attestation clause used when a will is read to a testator who is blind. An example of an attestation clause used when a will is read to a testator who cannot write. Note that if the person cannot write because of physical incapacity, then the witness should indicate this with appropriate detail on the will.

It is best to get professional assistance in these cases. An example of an attestation clause used when a will is translated by a witness to a testator who cannot read or understand English. It is best to get legal help in making a will. Clauses within a will may deal with a range of things including:. The clauses included in a will depend on the circumstances and the wishes of the testator. Subject to the provisions of the Transplantation and Anatomy Act SA , the executor has responsibility for the disposal of the deceased's body, but a testator may have specific wishes in this regard, for example, to be cremated and have their ashes spread over the sea from a particular place.

These specific wishes can be stated by the testator in their will. Normally, both parents are jointly responsible for the care of their children under 18, unless a court order changes parental responsibility. This means that if one parent dies, the surviving parent would assume sole responsibility for the child ren. There is no need for any direction in the will.

Where a court makes a parenting order, it stays in force until the court changes it, or the child or guardian s dies. A parent with sole responsibility for the long term care, welfare and development of a child because of a Family Court order, or because the other parent is not named on the birth certificate, or has died can state in their will who will care for their minor children after their death.

Whether or not there is a direction in the will, if the carer parent dies and the family cannot agree about who should care for the child, an application to the Family Law Courts may be necessary to determine who should care for the child.

For more information, see Arrangements for children. It sometimes happens that both spouses die at the same time or within a short time of each other.

When spouses die at the same time, under South Australian law there is no presumption that is, it is not taken as a fact that the older died first. Where there is no proof of who died first, it may be necessary for example, where the deceased were joint tenants to apply to the court for guidance as to the distribution of the estate. Where a person dies intestate the spouse must survive the deceased by 28 days before he or she can take a share in the estate [ Administration and Probate Act SA s 72E].

A testator can cover the possibility of both spouses dying together or within a short time of one another, by providing for this in their will. They can say that how they distribute their estate provided their spouse survives them by the required time, and how they distribute their estate differently in the event that their spouse fails to survive them by the required time. A will remains in force until the testator formally changes or revokes it [ Wills Act SA s 21].

The fact that circumstances have altered does not mean that the will stops operating or that it changes to meet the altered circumstances. The only exceptions are when a person commences or ends a registered relationship or marriage. The commencement of a registered relationship under the Relationships Register Act SA or marriage under the Marriage Act Cth automatically revoke a will unless the will was made in contemplation of the registered relationship or marriage and this was stated in the will.

The end of a registered relationship or marriage revokes any bequest to the former spouse or partner or appointment of the former spouse or partner as executor unless it is clear from the will that the end of the registered relationship or marriage is to have no effect [s 20A]. The Act defines when a registered relationship or marriage is taken to have ended. It is wise to seek legal advice about a will after commencing a registered relationship, marriage or separation.

A will that has been signed cannot be altered, either by crossing out or writing in new clauses, unless the new clauses are executed in the same manner as a will [see Wills Act SA s 24]. It is best to make a new will, but it can also be done by adding a codicil to the will. A codicil is an addition, in a separate document, to an earlier will. A codicil may confirm some of the contents of an earlier will and alter or add additional clauses to the will.

A codicil has to meet the formal requirements of a will see Valid wills and should refer to the original will and the date it was made.

It need not be witnessed by the same people who witnessed the original will, but it must have a properly signed attestation clause. A testator who wants to replace, or stop the operation of, an existing will should be sure that the existing will is revoked. A later will may revoke an earlier will by implication, that is, when the terms of the later will contradict the terms of the earlier will [see Wills Act SA s 22 b ].

South Australian Probate Registry

Any reference to a rule is referring to the Probate Rules You need to work out the type of grant for your circumstances. The Probate Registry cannot make this decision for you.

For a grant of Probate to be made there must be a Will. Probate is the process of proving that will.

Now all probate lodgments must be made electronically using CourtSA. The Supreme Court of South Australia has exclusive jurisdiction in this State to make orders in relation to the:. If you are looking for a grant issued before then please email the Court at enquiry courts. For more information on your legal rights, responsibilities and options we encourage you to talk to a lawyer to obtain specific advice regarding your situation. If you wish to attend there are sessions held by the Probate Registry on a regular basis explaining how to navigate CourtSA.

Wills, estates and financial administration

When somebody dies and we are named as executor of their Will you can be assured that the estate of the deceased person is in good hands. We are experts in this field and we have a full understanding of the roles and responsibilities of an executor. Having an expert and professional executor can make a real difference to your family and friends during a very difficult time. Once we have either been informed or found out that one of our Will customers has died, we will write to the next of kin, or the person who informed us of the death, with details of the next steps that will be taken. We understand that your first priority is arranging the funeral so that you can say goodbye to your loved one. When you are ready you can call us to talk about their estate. The first step for us is to talk to you to find out about the assets and liabilities of the estate to determine if formal administration is required. It is possible that where estate assets are minimal, or the majority of assets are jointly held, that formal administration will not be required, and if this is the case we can provide guidance to you on what to do next.

Applying for a Grant

The Public Trustee provides a range of financial and legal services for the South Australian community, including will preparation, estate administration and financial services. It acts as executor and trustee of deceased estates, manager of protected estates, attorney and where necessary litigation guardian. It also provides taxation and public education services. Everyone should have a will that accurately reflects their wishes. If you do not have a will, or your will is poorly prepared, it can lead to legal challenges, long delays and the possibility that your assets will not be distributed as you wanted.

The law concerning wills is contained in the Wills Act SA. Many of the legal terms used in this topic are highlighted and explained in our list of Legal Terms.

Many people find probate in South Australia to be a confusing and intimidating topic. Some deceased estates in South Australia may not require probate, while others may require a different sort of grant if an executor is not named or a Will cannot be located. Some brave or foolhardy souls attempt a do-it-yourself approach by trying to administer the deceased estate of a loved one themselves.

Our Top 5 Questions about Probate (in South Australia)

Probate is the process of a Court establishing that a Will is valid and represents the final testamentary intentions of the Testator. There are time limits for a Will to be submitted to the Probate Court after the date of the death of the Testator. When someone dies, their estate is represented by an executor or administrator.

This part deals with the collection and distribution of a deceased's estate. 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.

Probate Applications

But does a digital platform necessarily mean a lawyer-free platform? While the process has certainly become easier to navigate, the potential for estate disputes to arise unfortunately remains the same. This blog will consider issues surrounding the probate process in South Australia, for both self-represented parties and lawyers alike. To administer the Will of a deceased person, the Court needs to determine whether the Will is valid. This process is known as probate. The deceased may have had many Wills, or various documents that may have outlined how they wished for their estate to be distributed after their death.

Some deceased estates in South Australia may not require probate, while and your specialist lawyer at Genders & Partners will determine exactly what you need It usually delays the administration of an estate and costs more in legal fees.

When someone dies, their legal and financial affairs need to be clearly identified and finalised. Often these matters need to be dealt with soon after the person has died, which is the most stressful time for family and friends. We can help make this time in your life a little easier by guiding you through the process.

When someone dies

Get the most recent information on South Australia's response to the Coronavirus pandemic. Executing a will is the process of distributing the assets and following the wishes of the deceased person. The deceased person's will tells you who the executor is.

The Different Types of Probate in South Australia

One of the roles of the Supreme Court of South Australia is to make orders in relation to the validity of a Will of a deceased person, appoint an executor or an administrator, and the administration of a deceased estate. The Probate Registry is the registry of the court which deals with applications for grants of probate or administration and other related matters. The registry keeps a register of probates and administrations granted by the court.

For a more detailed discussion on probate see What is Probate? To apply, you must be over 18 years and named as an executor in the will.


Complete Guide to Probate SA 2020


Government Records and the Family Historian: Introduction


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