When someone passes away and leaves a will, their executor faces the task of managing the deceased’s estate. Part of this process often requires getting the legal authority to do so through a grant of probate. This article provides a step-by-step guide to applying for probate in South Australia and explains what is expected of you as executor.
What Is Probate and Why You Need It
Probate is a court order issued by the Supreme Court of South Australia under the Succession Act 2023 (SA). On 1 January 2025, this legislation streamlined and replaced three other statutes concerning how to make a valid will, how to distribute an estate, and the process for making a family provision claim.
A grant of probate serves two important functions: it confirms that a will is valid, and it grants the executor legal authority to administer the estate. Probate allows executors to deal with assets, pay debts, and distribute gifts and property to beneficiaries, according to the will.
Without a grant of probate, many asset holders will refuse to release funds or transfer ownership. Banks may block access to individual bank accounts over certain balances, and the title to real estate held solely by a deceased person cannot be sold or transferred without it.
Probate Is Not Always Required
Not every estate requires a grant of probate. You may be able to manage the administration without applying for probate if:
- Assets are held as joint tenants: Real estate or bank accounts held jointly pass automatically to the surviving owner under rights of survivorship. Transferring ownership generally requires lodging a Notice of Death with Land Services SA or presenting a death certificate to the bank.
- Low-value account thresholds: Financial institutions set internal limits for releasing funds without probate. Many banks will release lower balances directly to the executor upon receiving a death certificate, copy of the will, and signed indemnity.
- Direct payment under section 100: Under section 100 of the Succession Act 2023 (SA), an entity holding $15,000 or less in cash or personal property can pay it directly to a surviving spouse, domestic partner, or child without a court grant.
- Binding superannuation nominations: Superannuation benefits and life insurance payouts with valid binding death benefit nominations generally sit outside the estate and are paid directly to the nominated person.
- Small estates via the Public Trustee: Under section 73 of the Act, certain small estates valued at $100,000 or less without real estate may be administered by the Public Trustee under a simplified model without a formal court application.
Before making assumptions, contact each bank, super fund, share registry, or authority directly to confirm their requirements.
Before You Apply for Probate: Gathering Documents and Information
Before lodging an application, you will need:
- The original will and any codicils: The Supreme Court requires the physical original document.
- Official death certificate: Issued by the SA Registry of Births, Deaths and Marriages.
- Financial and asset details: Bank statements, property titles, shareholdings, superannuation policies, and an accurate record of any unpaid debts, mortgages, or loans.
- Asset valuations: The court filing fee scales based on the total gross value of the estate, so accurate figures are required.
- Executor details: Names and contact details for the executors mentioned in the will.
The Probate Application Process in South Australia
1. Online Lodgement (CourtSA)
Applications are prepared and submitted electronically using the CourtSA portal. You (or your lawyer) enter the estate’s details directly into the portal, which once the grant is approved automatically generates the required court documentation, including the grant an inventory of assets and liabilities and where applicable Registrars Certificates of disclosure relating to certain assets of the estate.
2. Physical Lodgement of the Will
While the application form is electronic, the physical original will must be lodged directly with the Probate Registry at the Supreme Court in Adelaide. Under the Relevant Uniform Civil Rules, executors and lawyers are instructed not to write on or alter the original will (e.g., no staple removal, paperclips, or signing the back) unless specifically directed by the Registrar or required for identification. Unnecessary marks can raise “court requisitions” (formal queries about potential revocation or tampering).
3. Court Filing Fees
Court filing fees are tiered according to the total value of the estate assets. Fees are updated annually on the Courts Administration Authority fee schedule, ranging from approximately $1,000 for smaller estates to over $4,000 for larger estates with a gross value over $1,000,000.
The court reviews everything and, if satisfied that the will is valid and your application is in order, issues the probate grant. That document is your formal authority to act. From that point, you can begin the practical work of administering the estate.
Understanding Your Duties and Responsibilities as Executor
Being named as executor comes with legal obligations. You are a fiduciary, meaning the law requires you to act honestly, carefully, and solely in the interests of the estate and its beneficiaries.
In practice, this means identifying and securing all assets, paying legitimate debts and any taxes owing, and keeping detailed records of every transaction you make. Good record-keeping helps protect you if anyone later questions how the estate was managed.
You must act impartially towards beneficiaries and not favour one over another, even if family dynamics make that tempting. Distribution must follow the will, not your personal judgement about who deserves what.
You are also responsible for notifying beneficiaries and creditors once probate is granted, and for managing any claims made against the estate before you distribute assets.
Breaching these duties is serious. Executors who act improperly can face personal liability, meaning they may be required to compensate the estate personally. If you are unsure whether a particular action is appropriate, seek legal advice before you act.
A person who feels they haven’t been adequately provided in a will or as a result of an intestacy where no will exists may be eligible to bring a family provision claim against the estate, generally within six months of the grant of probate or administration. Because of this, most executors are advised to hold off on a final distribution until that six-month window has passed. Distributing earlier does not stop a claim, it may mean that an executor may have to seek to recover funds previously paid from beneficiaries or potentially cover a shortfall to satisfy a claim personally, if a claim later succeeds.
Timeline and Common Delays in the Probate Process
For straightforward estates with a clear, uncontested will and organised documents, the grant of probate itself is usually issued in what is known as common form within four to eight weeks of a well-prepared application being lodged, however court processing times may change.
Final distribution, however, usually takes longer. Because of the six-month family provision claim window, most estates are not fully wound up until around six months after the grant, so a realistic timeframe for a simple estate, start to finish, might be closer to six to nine months.
Complex estates can take considerably longer, for example, if the estate includes multiple properties, business interests, or overseas assets, or if someone challenges the validity of the will or disputes a debt.
Many common causes of delay are preventable, for example, missing documents, unclear beneficiary details, disputed creditor claims, and tax complications that were not identified early. Starting the process promptly after the death, gathering documents thoroughly, and getting professional advice early can make a meaningful difference to how smoothly everything runs.
Key Takeaways
- Probate is often required, but not always. It is the formal court process that validates the will and gives an executor legal authority to manage the estate.
- Preparation is essential. Applications require the original will, death certificate, financial records, and asset valuations. Missing documents cause delays.
- Your duties as executor are serious. You must act honestly, keep detailed records, settle debts fairly, and distribute assets according to the will. Breaching these duties can expose you to personal liability.
- Plan for the timeline. A grant of probate for a simple estate generally takes four to eight weeks, but final distribution is usually held until around six months after the grant, to guard against family provision claims. Complex or contested estates can take much longer.
- Understanding the process protects everyone. Knowing what is involved upfront helps you avoid common pitfalls, protect yourself legally, and ensure beneficiaries receive their inheritance without unnecessary disputes.
With the right preparation and support executors can successfully apply for probate and administer a deceased estate. If you have been named as an executor and are uncertain where to start, the team at Donlan Lawyers is here to help. We’ll guide you through every step with clear advice, practical support, and the specialist expertise to get it right.
Disclaimer: This article provides general information only and does not constitute legal advice. For advice specific to your circumstances, please consult a qualified Australian legal practitioner.