DIY Probate Kit (SA) KEEPING THINGS SIMPLE. Phone Andreyev Lawyers

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1 2018 DIY Probate Kit (SA) KEEPING THINGS SIMPLE

2 CONTENTS How do I finalise the deceased s estate?... 0 The deceased has left a Will appointing me as the executor. Do I need to apply for probate?... 2 Now I know that I need to apply for probate, what documents and information do I need?... 4 How do I prepare the probate application?... 6 What a standard Will may look like... 7 General rules on probate documents Form 36: Draft Grant Form 37: Executor s Oath Form 55: Affidavit of Assets and Liabilities Annexure A to Affidavit of Assets and Liabilities Form 57: Certificate of Disclosure Lodging the probate application What do I do with assets that are not included in probate? The team that can help Important Disclaimer How to contact us Liability limited by a Scheme approved under the Professional Standards Legislation. Legal practitioners employed by Andreyev (Sydney) Pty Ltd A.B.N and Andreyev (Adelaide) Pty Ltd A.B.N are members of the Scheme

3 How do I finalise the deceased s estate? WHAT IS PROBATE? Probate is the official recognition by the Supreme Court that a Will is legally valid. A Grant of Probate is a document which certifies that the Supreme Court recognises that the document presented is the last valid Will of the deceased, and that the executors now have the authority to deal with the estate assets and liabilities. A Grant of Probate also acts as further proof of death of the deceased for the purposes of dealing with third parties, e.g. banks, share registries, etc. (without having to also present the formal Death Certificate). A Grant of Probate allows the executors of the deceased s Will to collect in the deceased s assets, to pay any debts of the deceased, and then finally to distribute the remaining estate to beneficiaries as directed by the Will. WHAT ARE LETTERS OF ADMINISTRATION? If the deceased did not leave a Will (or did not make a legally valid Will), the next of kin may need to apply to the Supreme Court for Letters of Administration, so that they can be appointed as the Administrator of the estate of the deceased. An Administrator under Letters of Administration performs the same role as the Executor under a Grant of Probate. The person (or persons) who is able to take on the role of Administrator is determined by their relationship to the deceased. The following people can apply to be the Administrator, and in the following order of priority: 1. The deceased s spouse or partner; 2. One or more adult children of the deceased; 3. The deceased s mother and father; 4. One or more siblings of the deceased (i.e. their brothers and sisters); 5. A grandparent of the deceased; or 6. The deceased s uncles and aunts. Alternatively, one or more of the above listed people may directly nominate themselves as the Administrator. This is usually possible so long as people with a higher priority agree to the nominated person taking on this role by renouncing their priority in the role. THE PUBLIC TRUSTEE If the deceased does not have any next of kin (or no next of kin are willing to act as the Administrator), and the deceased did not have a Will, then the role of Administrator will fall to the Public Trustee.

4 1 DIY Probate Kit (SA) The Public Trustee in South Australia will charge a tiered commission for administering the estate, calculated on the gross capital value of the estate (i.e. before taking into account any debts), starting at 4.4% reducing to 1.1%, as follows: Total gross estate value Up to $200,000 Commission 4.4% (Maximum rate) $200,001 - $400,000 $8,800 Plus 3.3 cents for every dollar above $200,000 $400,001 - $600,000 $15,400 Plus 2.2 cents for every dollar above $400,000 $600,001 Plus $19,800 Plus 1.1 cents for every dollar above $600,000 A general commission of 5.5% is also charged for any income received by the estate and collected by the Public Trustee. There are also a number of other fixed charges, for things such as preparing deeds, audits, and preparing tax returns. The process of having the Public Trustee administer the estate of a deceased can be expensive when compared to the deceased having a valid Will and nominating one or more people who are likely to be able to act as the Executor. PROBATE VERSUS LETTERS OF ADMINISTRATION The main difference between Probate and Administration is that under Administration the Administrator must distribute the assets of the estate (after meeting any debts and liabilities) to the people and in the proportions prescribed by law, (as opposed to according to the wishes of the deceased as expressed in a Will).

5 2 DIY Probate Kit (SA) The deceased has left a Will appointing me as the executor. Do I need to apply for probate? The main reason that Probate is required is that some organisations that hold the deceased s assets, or maintain registers that record title to such assets, will not release them or record a transfer to the executor or the administrator for distribution to the beneficiaries unless they have first seen the grant of probate from the Supreme Court. JOINTLY HELD PROPERTY Probate (or letters of administration) will not be required for any of the deceased s assets that are held as joint tenants with another person, (but not tenants in common ). For example, people often hold their family home as joint tenants with their spouse. The deceased s interest in the jointly held asset will automatically pass to the surviving joint tenant, without Probate being required. For example, if a husband dies (survived by his wife), and his bank accounts, motor vehicles and family home are all held in joint names (as joint tenants), Probate or Letters of Administration will not be required. It may be necessary to lodge a Notice of Death with the Lands Titles Office or various registries to record the passing of the joint interest to the surviving owner. This is usually a relatively simple process, and only requires a copy of the Death Certificate and an appropriate notification. LOW VALUE ASSETS An estate can also generally avoid Probate or Letters of Administration when the only assets of the deceased are of a low value, such as small share parcels or bank accounts, (usually these will need to have a value less than $20,000). Each financial institution and share registry has its own low-value cap being the value that the asset must reach before it considers that Probate or Letters of Administration are required to transfer ownership of the asset. Once again, in order to transfer low-value assets it is generally necessary to prove that you would be the person administering the estate if Probate (or Letters of Administration) were granted (e.g. a copy of the Will), and that the owner has died (by means of producing the Death Certificate). THE DECISION PROCESS In order to decide whether Probate or Letters of Administration are required, the following steps should be taken: A list of all assets in the deceased s name (both solely and jointly) should be compiled. If all assets are held as joint tenants, there is no need for Probate or Letters of administration. The assets can be dealt with by providing a copy of the Death Certificate and relevant paperwork to each organisation with which the assets are held. Each particular organisation will have its own paperwork.

6 3 DIY Probate Kit (SA) If some assets are held solely or as tenants in common, then each organisation with which those assets are held should be contacted to determine their deceased estate transfer policy. If the value of the assets held with each organisation is under their low value threshold, then Probate or Letters of Administration are not required. The assets can generally be dealt with by providing the following to each organisation with which the assets are held: o o o The Death Certificate; A copy of the Will (if there is one); and Relevant paperwork required by the organisation (which may include an indemnity form from the beneficiary, where there is no Will). If any of the assets that are held solely or as tenants in common exceed the particular organisation s low value threshold, then Probate or Letters of Administration will be required before those assets can be transferred to the beneficiary. If you are uncertain of whether Probate is required, please contact us on for tailored advice about your case.

7 4 DIY Probate Kit (SA) Now I know that I need to apply for Probate, what documents and information do I need? REQUIRED DOCUMENTS To prepare an application for Probate or Letters of Administration the following documents will be required: The deceased s Last Will (original), (if the deceased actually made a valid Will); Death Certificate (original); Records of all assets of the deceased and their value at the time of death, including: o o o o o o Bank statements; Share dividend statements; Superannuation fund statements; Certificate of Title of property (or properties); Registration papers of motor vehicles; and Copies of any relevant agreements whereby the deceased is owed money (loan agreements, mortgages, accommodation bond refunds etc); and Records of all debts and other liabilities of the deceased, including: o o o o Mortgage statements; Copies of any relevant agreements whereby the deceased owed money to someone else; Outstanding bills (outstanding as at date of death); and Funeral expenses. The original Death Certificate (only a certified copy is required if a solicitor is preparing the application) and the original Will (for probate) are submitted with the application, and the Court retains these documents. The issued Grant of Probate or Letters of Administration is evidence of death and (for Probate) the testamentary wishes of the deceased. APPLICATION COST The amount of the application fee is determined by the gross value of the estate. The application fee varies from $797 to $3,197 (as of 1 July 2018) and is usually increased on 1 July of each year To check the current fee, visit the Supreme Court of SA website at scroll down to the table headed Probate fees as at 1 July 20XX, and then find the Estate s gross value range. That is the fee that will apply.

8 5 DIY Probate Kit (SA) PROBATE APPLICATION DOCUMENTS - OVERVIEW The complexity of a probate application will depend on the number and type of assets that the deceased had at the date of death, as well as the extent and nature of the deceased s debts and other obligations. A probate application consists of four core documents: Draft Grant; Executor s Oath; Affidavit of Assets & Liabilities (with Statement of Assets & Liabilities annexed); and Registrar s Certificates (also known as Certificates of Disclosure). Other documents may be needed if there are problems with the Will. In this booklet we will run through the most common problems for you to look out for. Some of the other documents that may often be required as part of the application in South Australia are: Affidavit of Alias (if the deceased s name was misspelt in the Will or if the deceased used multiple names or versions of their name); Affidavit of Plight and Condition (if the Will has been altered from its original form i.e. a staple removed); and Affidavit as to Due Execution (if there are any questions as to the validity of the Will or the testamentary capacity of the deceased - this affidavit will usually be required for estates that have been caveated). We can help call us on to discuss how.

9 6 DIY Probate Kit (SA) How do I prepare the Probate application? DIY PROBATE The next part of the booklet is dedicated to explaining how to complete each of the above forms to enable you to prepare and lodge your own probate application. In the following pages we will explain: What a standard Will looks like, and what problems to look out for; How to prepare the core probate application forms; and How to prepare any additional forms that may be required. Before you start preparing the probate application you will need to download a copy of the Probate Rules, which can be accessed via the Supreme Court of SA s website at (scroll down the page until you find the Supreme Court Probate Rules 2015 and the Supreme Court Probate Supplementary Rules 2015). The Supplementary Rules 2015 contain the standard Forms that you will need to prepare your application. We recommend that you download the Supplementary Rules in Word document format so that you can copy and paste the text for the probate application forms as set out later in this booklet. If you encounter any difficulties, please contact us on for advice and guidance.

10 7 DIY Probate Kit (SA) What a standard Will may look like Above is a copy of the first page of what purports to be the last will of John Lennon. Wills vary greatly in style, but most Wills made before 2000 will look fairly similar to John s. This is despite the fact that this Will was prepared to be governed by the laws of the State of New York! Earlier Wills will usually be between 2 and 6 pages in length, whereas more modern Wills may be as long as 50 pages. Most Wills will be fastened in the top left hand corner by a staple or some other type of permanent fastening.

11 8 DIY Probate Kit (SA) There is no right or wrong way for a Will to look, but there are a few common problems to look out for in the deceased s Will when preparing your probate application. COMMON PROBLEM #1: MISSPELLINGS It sounds basic, but it is common for names or addresses in a Will to be misspelt. Any misspellings need to be addressed in the probate application this can be done easily in the Executor s Oath (we will explain how in our How To notes about that form). All you need to do at this stage is make a note of what names or addresses have been spelt incorrectly so that you can remember to include acknowledgement of the misspelling in the Executor s Oath. COMMON PROBLEM #2: NAMES OR ADDRESSES HAVE CHANGED Often many years (or even decades) have passed since the Will was made, so it is not surprising that people included in the Will may have changed their name or their address. Any change of name or address of the deceased or the executor(s) needs to be dealt with in the probate application again, this can be done easily in the Executor s Oath (we will explain how in our How To notes about that form). All you need to do at this stage is make a note of what names or addresses are out of date so that you can remember to include details of the changes in the Executor s Oath. COMMON PROBLEM #3: THE WILL IS DAMAGED Although most Wills are kept under lock and key while the testator is alive, once they have died it can be a different story. By the time the deceased s Will gets to the executor, it may look like it has seen better days. Common types of damage to a Will include: Tea or coffee stains; Tears in the paper; Missing staple or other fastening that holds the pages together; and Water damage. Damage like this does not invalidate a Will, but it does need to be explained in the probate application. This explanation must be given in a separate affidavit document called an Affidavit of Plight and Condition. The affidavit must set out what happened to the Will in order to cause the damage. Please call us for assistance in drafting a valid Affidavit of Plight and Condition (if required). COMMON PROBLEM #4: THE WILL HAS NOT BEEN PROPERLY WITNESSED A Will must be signed by the deceased and by two independent adult witnesses. The Will should be signed by all three on each page (with the same coloured pen) and must be dated on at least one of the pages. (Looking back at John Lennon s Will, we see that his Will would have issues in South Australia because the first page bears only two signatures, not the three signatures that the Probate Registry would expect to see.) If the deceased s Will is missing signatures, has not been signed using the same coloured pen or does not appear to be dated, an additional document called an Affidavit of Due Execution is

12 9 DIY Probate Kit (SA) required to be submitted as part of the probate application. This affidavit must be made by one of the witnesses who witnessed the deceased s Will to verify how or when the Will was signed by the deceased. Please call us for assistance in drafting a valid Affidavit of Due Execution (if required). COMMON PROBLEM #5: THE DECEASED WENT BY MULTIPLE NAMES It is quite common for people to be known by multiple names throughout their lives. This may happen when a woman marries but continues to use her maiden name, when a short-form version of a name is used in preference, when a person prefers to go by their middle name, or when a name is anglicised. The various names are known for the purpose of a probate application as the deceased s aliases, and should be included in the probate application if the deceased held assets in a name other than the deceased s full legal name at the time of death. For example, if Mrs Katherine Diane Doe (nee Smith) owns her house in the name Katherine Diane Doe, owns $50,000 worth of shares in the name Kate Doe, and owns an investment property in the name Katherine Diane Smith, then all three of those names (Katherine Diane Doe, Kate Doe and Katherine Diane Smith) need to be included in the probate application. An additional document called an Affidavit as to Alias will need to be prepared to explain that all three names belong to the same person. We can help you to prepare an Affidavit as to Alias, please contact us on if you think it may be required for the Estate you are dealing with.

13 10 DIY Probate Kit (SA) General rules on probate documents The Probate Registry has specific rules about the presentation of all documents that are lodged at the Registry. These rules are set out in Rule 29 of the Probate Rules. As you are preparing each of the documents described in this Guide, you must make sure that the final document complies with these rules. Each document that you prepare for lodgement with the Probate Registry must: Be in the English language; Be on A4 size white bond paper; Have page numbers on each page; Be typed or printed so as to be completely legible in no less than size 12 font except for quotations and footnotes which may be in size 10 font; Have margins of 4 centimetres to the left and 2 centimetres to the right; Have one and a half spacing between lines (except for the Form 36: Draft Grant, in which case double spacing is to be used); Have double spacing between paragraphs; Have figures and amounts of money expressed in numerals and not in words; Be signed and witnessed with the same pen; Have any erasures or handwritten additions explained (either by cover letter or on the appropriate Form); Have a backsheet, providing the name of the Estate, the name and number of the Form it is attached to, and the contact details (name, address and phone number) of the Executor (with the exception of the Registrar Certificates which do not require a backsheet); and Be printed: o o Single-sided if the document is an original affidavit or statutory declaration; and Double-sided for all other documents.

14 11 DIY Probate Kit (SA) Form 36: Draft Grant The Form 36 shown below, known as the Draft Grant, is the best form to start with because it is simple and captures the main information about the probate application. It is called a Draft Grant because the Probate Registry will later re-type it and put their official seal on it to make it final. You will see that the Form refers to various Rules these are references to the Probate Rules. You should keep the Probate Rules handy so you can refer to them. Below: Form 36 Draft Grant from the Probate Rules

15 12 DIY Probate Kit (SA) PREPARING THE FORM 36 The text in the Form 36 that is not in square brackets or italics needs to be reproduced exactly. You can do this quickly and easily by downloading a Word document version of the Supplementary Probate Rules and then copying the Form 36 into a new Word document, (at the time of publication of this booklet Form 36 was on page 74 of the Supplementary Probate Rules). The Form 36 document should then be formatted to comply with the general presentation rules (see page 10 of this Guide). Please note that you must use double spacing in this document. What you should end up with is a form that looks like the sample set out below:

16 13 DIY Probate Kit (SA) NOTES FOR COMPLETING THE FORM 36 After the words The estate of, enter the full name of the deceased as it appears on the Will in capital letters, followed by the word deceased. If the deceased went by multiple aliases, then you may need to refer to Rule 12. After the words Late of, enter the last residential address of the deceased as it appears on their Death Certificate. After the words Place of Death, enter the suburb and postcode only of the place where the deceased died as it appears on the Death Certificate of the deceased (e.g. Adelaide 5000 ). You should not include the full address of the place of death, even though the Death Certificate has this information. Please note that this is the only time in this process where you can get away with describing an address this way. After the words Date of death, enter the date of death of the deceased as it appears on the Death Certificate. Leave the date after Date of Grant blank (like it appears in the above sample). This date will be filled in by the Probate Registry when they issue the Grant of Probate. After the words Is granted to, enter your full name and current residential address, with your name in capital letters. If there are other executors, you should insert their details after the full details of the first executor have been provided. You need to choose whether to use the sole executor as described in the will or the executors described in the will or one of the executors described in the will after the executor details, depending on the circumstances. The Form 36 should only be 1 page in length (it should not run-over onto a second page). If you encounter any difficulties, please contact us on for advice and guidance.

17 14 DIY Probate Kit (SA) Form 37: Executor s Oath The Form 37 shown below, known as the Executor s Oath, sets out your promise, as an executor (or as joint executors) to properly administer the estate of the deceased. The oath represents a promise to the Court to fulfil your responsibilities as an executor. You will see that the form refers to various Rules these are references to the Probate Rules. You should keep the Probate Rules handy so you can refer to them. Below: Form 37 Executor s Oath (shortened version) from the Probate Rules

18 15 DIY Probate Kit (SA) PREPARING THE FORM 37 The text in the Form 37 that is not in square brackets or italics needs to be reproduced exactly. You can do this quickly and easily by copying the Form 37 from the Probate Rules into a new Word document (the Form 37 is on pages 76 to 77 of the Supplementary Probate Rules). The Form 37 document should then be formatted to comply with the general presentation rules (see page 10 of this Guide). Please note that this Form should be printed single-sided. What you should end up with is a form that looks like the sample set out below (paragraph 5 and the signing blocks are on a second page):

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20 17 DIY Probate Kit (SA) NOTES FOR COMPLETING THE FORM 37 The deceased s full name should be inserted in the line In the Estate of deceased. Your full name should be inserted in the first line in capital letters. If your name is different to your name as stated in the Will because you changed your name since the Will was made, after your current name you should insert the words formerly called and then insert your name as in the Will. If your name is different to your name as stated in the Will because the Will contains an error, after your correct name you should insert the words in the will called and then insert your name as in the Will. Your current residential address should be inserted in the first line. If your current address is different to your address as stated in the Will, additional wording may be needed. Your occupation should be inserted in the second line. It does not matter if this occupation is different to your occupation as stated in the Will. If there is another executor (or other executors), you should repeat the process to insert their details. The name of the executors should be in the same order as they appear in the Will. You must decide whether you will be swearing an oath or making an affirmation. The difference is that an oath is sworn on the Bible, whereas an affirmation is not. You should then delete the one you are not using from the second line and from the signing section. You will also need to change the heading on the top right corner of the form to Executor s affirmation if you choose to affirm the document. At paragraph 1, the deceased s full name should be inserted in the second line in capital letters. If the deceased went by multiple aliases, the deceased s name as it appears in the Will should be inserted first, followed by the other names by inserting the words otherwise and then inserting the deceased s other name(s). At paragraph 1, the deceased s last residential address as it appears on their Death Certificate should be inserted in the second line. If the deceased s address in the Will is different, you should insert the words formerly of before their old address. You then need to insert the deceased s last address (as stated on their death certificate) after the words but late of. At paragraph 2, your relationship to the deceased should be inserted if you were the spouse of the deceased (widow or widower) or otherwise a blood relative (e.g. son, daughter, sister, grandson, cousin, aunt, nephew etc.). At paragraph 2, you need to choose whether to use the sole executor, the executors or one of the executors (if the other executors have renounced) depending on the circumstances. At paragraph 5, you need to insert: o o o the address where the deceased died as it appears on their Death Certificate (this may be a hospital, a nursing home, or other address); the deceased s date of death as it appears on their Death Certificate; and the age of the deceased as it appears on their Death Certificate. In the signing section, you need to insert your full name. If there are multiple executors, you need to reproduce the signing section so that there is one for each of the executors. If there are multiple executors, you also need to change the tense throughout so that the form refers to we, us and our in the relevant places.

21 18 DIY Probate Kit (SA) If you have changed your name since the deceased s Will was made, you should insert a new paragraph between the existing paragraphs 2 and 3 which provides an explanation for and evidence of the name change. For example, I have changed my name through marriage since the date of the last will and testament of the deceased. A certified copy of my Certificate of Marriage is annexed hereto and marked A. You must remember to annex a copy of whatever document you are using as evidence of your name change to the Form 37 by stapling them together with the backsheet. The annexed document must be marked in accordance with the guidelines set out at Form 22, Note 6. The Form 37 should be 2 pages in length, with at least one of the numbered paragraphs appearing on the second page (the signature lines cannot just be on the second page alone).

22 19 DIY Probate Kit (SA) Form 55: Affidavit of Assets and Liabilities The Form 55 shown below, known as the Affidavit of Assets and Liabilities, verifies the assets and liabilities in the deceased s estate. The actual statement of assets and liabilities is annexed to the Affidavit of Assets and Liabilities as Annexure A. Below: Form 55 Affidavit of Assets and Liabilities from the Supplementary Probate Rules

23 20 DIY Probate Kit (SA) PREPARING THE FORM 55 The text in the Form 55 that is not in square brackets or italics needs to be reproduced exactly. You can do this quickly and easily by copying the Form 55 from the Supplementary Probate Rules into a new Word document (the Form 55 is on page 121 of the Supplementary Probate Rules). The Form 55 document should then be formatted to comply with the general presentation rules (see page 10 of this Guide). Please note that this Form should be printed single-sided. What you should end up with is a form that looks like the sample set out below:

24 21 DIY Probate Kit (SA) NOTES FOR COMPLETING THE FORM 55 The deceased s full name should be inserted in the line In the Estate of deceased. Your full name should be inserted in the first line in capital letters. Your current residential address should be inserted in the first line. It does not matter if this address is different to your address as stated in the Will. Your occupation should be inserted in the second line. It does not matter if this occupation is different to your occupation as stated in the Will. If there is another executor (or other executors), you should repeat the process to insert their details. You must decide whether you will be swearing an oath or making an affirmation. The difference is that an oath is sworn on the Bible, whereas an affirmation is not. You should then delete the one you are not using from the second line and from the signing section. At paragraph 1, the deceased s full name should be inserted in the second line in capital letters. If the deceased went by multiple aliases, the deceased s name as it appears in the Will should be inserted first, followed by the other names by inserting the words otherwise and then inserting the deceased s other name(s). At paragraph 1, the deceased s last residential address as it appears on their Death Certificate should be inserted in the second line. It does not matter if this address is different to the deceased s address as stated in the Will. In the signing section, you need to insert your full name. If there are multiple executors, you need to reproduce the signing section so that there is one for each of the executors. The signing sections must be on a page with some of the affidavit text. This may mean you will have to space out the document so it goes on to the next page. While this will look a bit strange because the document will have lots of white space, it is a requirement of the Probate Registry. If there are multiple executors, you also need to change the tense throughout so that the form refers to we, us and our in the relevant places. The Form 55 will usually be 1 page for applications with a sole executor, and 2 pages for applications with two or more executors.

25 22 DIY Probate Kit (SA) Annexure A to Affidavit of Assets and Liabilities The Annexure A to the Affidavit of Assets and Liabilities is the most complicated document in the probate application because it is where you set out all the information about what is comprised in the deceased s estate. The Probate Rules provide a comprehensive guide about the types of interests you need to address. You should only include in the Annexure A the assets and liabilities that are relevant to the deceased s estate. Below: Cut down version of Annexure A to Affidavit of Assets and Liabilities from the Supplementary Probate Rules

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27 24 DIY Probate Kit (SA) NOTES FOR COMPLETING THE ANNEXURE A TO AFFIDAVIT OF ASSETS AND LIABILITIES The deceased s full name should be inserted in the top line In the Estate of deceased. The last residential address of the deceased should also be inserted in the top line. Property held by the deceased as joint tenant should not be included in the Statement. You should delete any asset or liability description that is not relevant to the deceased s estate (i.e. if there are no motor vehicles in the deceased s sole name, this line should be deleted). If there are assets held outside of South Australia (this can include bank accounts with the branch being outside of South Australia and shares where the registered office is outside of South Australia), there should be a new heading, B Assets outside South Australia. Each bank account in the sole name of the deceased should be included, and the entries need to show the account number, branch location and balance of those bank accounts as at the date of death. If there are term deposits, the entries will also need to include the initial amount, interest rate and maturity date. You may need to contact the bank to get these details. The valuation of any shares needs to give a source for the valuation. The template Annexure A in the Supplementary Probate Rules suggests that a newspaper be used, but it is more common now to use online resources such as the ASX website. If the shares are in a company registered outside of South Australia, you will need to include the State or foreign country in the description. Generally, any funeral expenses should not be included as a liability of the estate. This is because the Statement is meant to be a snapshot of the deceased s affairs immediately before they died (when they had not yet incurred any funeral costs). If a pre-paid funeral bond was held by the deceased, this should be included on Annexure A as an asset of the Estate. The values shown in Annexure A should be current at the deceased s date of death. However, if the application is being made more than a year after the deceased s death, then generally speaking, the values should be current at the time of the application.

28 25 DIY Probate Kit (SA) Form 57: Certificate of Disclosure For some assets, you need to provide evidence to certain parties that the asset has been disclosed to the Probate Registry as part of the probate application. For example, before you can deal with a parcel of land, you will need to provide evidence of disclosure to the Lands Titles Office. You should check with the relevant organisations including the bank (if the deceased had a bank account); company (if the deceased held shares);and accommodation facility (if the deceased paid some form of accommodation bond or deposit), as to whether they need a Certificate of Disclosure (also known as a Registrar s Certificate) before they will release the asset to you. If required, you will then need to lodge a Form 57: Certificate of Disclosure for each of these assets. The Form 57 can be found on page 132 of the Supplementary Probate Rules and provided to the Probate Registry in draft form. The Registrar applies the Court Seal to the Form and returns it to you at the same time when the Grant of Probate is issued. Below: Form 57 Certificate of Disclosure from the Supplementary Probate Rules

29 26 DIY Probate Kit (SA) PREPARING THE FORM 57 The text in the Form 57 that is not in square brackets needs to be reproduced exactly. You can do this quickly and easily by copying the Form 57 from the Supplementary Probate Rules into a new Word document (the Form 57 is on page 132 of the Supplementary Probate Rules). The Form 57 document should then be formatted to comply with the general presentation rules (see page 10 of this Guide). Please note that this Form should have double line spacing. What you should end up with is a form that looks like the sample set out below:

30 27 DIY Probate Kit (SA) NOTES FOR COMPLETING THE FORM 57 The deceased s full name should be inserted in the line In the Estate of deceased. Under the words Particulars of Asset, you should insert the description of the asset exactly as it appears in Annexure A to the Affidavit of Assets and Liabilities. Under the description of the asset, insert the source of the valuation (as it appears in Annexure A) followed by the value of the asset. The value should be identical to the value given in Annexure A. You will need to prepare one Form 57 for each asset that requires a Certificate this includes the Lands Titles Office, banks, share registries and nursing/retirement homes where an accommodation bond is being refunded. One exception to this is when you have assets that are linked to the same institution. For example if the deceased has three bank accounts all with ANZ Bank, then all three bank accounts can be recorded on a single Certificate. However, if the deceased had one bank account with ANZ Bank and another with CBA, you will need to make separate Certificates for each of these bank accounts, because one Certificate will go to ANZ and one will go to CBA. Assets such as motor vehicles and household effects do not need a Certificate. Each Form 57 should be 1 page in length.

31 28 DIY Probate Kit (SA) Lodging the probate application When you have compiled your probate application, you should print it out single-sided on good quality white paper. You must not sign the probate application documents at this time the signing occurs after examination by the Probate Registry. To the lodge the probate application as a personal applicant, you must attend the Probate Registry personally between 9.30am and 10.30am on business days. Appointments for a specific time or day are not available. Please note that the Probate Registry stipulates that a personal applicant must not be accompanied by a person acting or appearing to act as the applicant s adviser. The original Will and a certified copy of the Death Certificate must be lodged with the probate application. These documents or any other documents required in support of the probate application are retained by the Court and will not be returned to you. When you attend the Probate Registry, you will meet with an examining officer so that they can undertake an initial assessment of the application. If the application is incomplete or does not comply with the Probate Rules, then it will not be accepted for lodgement. The examining officer will return the documents to you to be fixed before being lodged again. If the application appears to be complete and satisfactory, it will be received for lodgement. You will then be required to produce evidence of his or her identity and to pay the Court fee. The initial assessment establishes only that the application may be lodged. After the application has been examined and found to be in order (which can take a couple of months), you will be required to attend at the Probate Registry again to execute the documents, either under oath or by affirmation, before a Registrar or designated officer. This finalises the probate application process, and a grant of probate should be issued by the Registry shortly after that.

32 29 DIY Probate Kit (SA) What do I do with assets that are not included in probate? SUPERANNUATION DEATH BENEFITS If the deceased had superannuation, the deceased's superannuation entitlements (plus any applicable life insurance held within superannuation) generally convert to death benefits at the time of the deceased's death. You will need to make enquiries as to who is entitled to receive the death benefits. The actual recipient of the superannuation death benefits will be determined based on whether or not a valid binding nomination was in place at the date of death. It is common for couples to nominate their surviving spouse or partner as the recipient of all the death benefits, or to nominate their estate as the recipient (in which case the death benefits will be dealt with together with the rest of the estate). If no valid binding nomination is in place, the trustee of the superannuation fund will have discretion to pay to any one or more of the deceased s superannuation dependants, or alternatively to the deceased s estate. Superannuation dependants for the purposes of death benefits payments will usually be: The deceased s spouse or de facto partner; A child of the deceased; Any person who was financially dependent on the deceased; and Any person with whom the deceased had an interdependency relationship. Certain superannuation dependants have the option to take the death benefits as either a lump sum or a pension. Some funds also permit the deceased to specify in advance (via a nomination) how the death benefits are to be paid. You may need to contact the superannuation provider to determine whether it is a possibility that the death benefit payment will be made to the Estate. If there are no superannuation dependants, the super will almost always be paid to the Estate. If this is the case, the superannuation entitlements will need to be included as an asset of the Estate. If you are eligible to receive death benefits you should contact us on to seek advice on the most tax-effective way of receiving those benefits.

33 30 DIY Probate Kit (SA) LIFE INSURANCE PAYOUTS Any benefits payable under any life insurance policies on the life of the deceased will generally be paid directly to the nominated beneficiaries of the policies, and therefore will not form part of the deceased s estate. However, there are some instances that the policies are held within the deceased s superannuation. If this is the case, it may need to be included as an asset of the Estate. If you are unsure about the terms of any life insurance policy or who the nominated beneficiaries are, you should contact the relevant insurer or ask for our assistance by calling

34 31 DIY Probate Kit (SA) The team that can help If you have decided that DIY probate is not for you, we can competently assist you with all the aspects of probate, letters of administration and the administration of estates. ANDREW ANDREYEV Andrew is an Estates, Trusts and Tax lawyer with over 20 years of experience helping clients with these issues. He is admitted to practice law in Australia and the United Kingdom, and is a Chartered Tax Adviser with the Taxation Institution of Australia as well as a fellow of the internationally recognised Society of Trust & Estate Practitioners (STEP). Contact Andrew: Phone: andrew@andreyev.com.au HANNAH ANDREYEV Hannah acts as Special Counsel with a particular focus on Wills and estate planning for farming families and families with businesses. Hannah has assisted a number of our clients revise their estate planning strategies in order to put into place effective and long-term estate plans. Contact Hannah: Phone: hannah@andreyev.com.au

35 32 DIY Probate Kit (SA) LOUISE RUSSO Louise has experience across a breadth of practice areas. In particular, Louise has an interest in deceased estates, whether assisting executors and administrators carry out their duties, or advising beneficiaries of their rights and entitlements. Louise has prepared countless probate and letters of administration applications, and also has experience in the complex area of rectification of Wills. Louise has a disputes and litigation background, where she has had exposure to family provision, executorial and other disputes involving estates. Contact Louise: Ph: louise@andreyev.com.au SIMONE DANIELLS Simone works in our Business Law Team with a focus on SME businesses and their owners. Simone assists our business clients put in place comprehensive estate planning and business succession plans, to ensure a smooth transition of wealth between generations. Contact Simone: Ph: simone@andreyev.com.au

36 33 DIY Probate Kit (SA) DAMIEN LEHMANN Damien can assist you prepare estate planning documents including Wills, Enduring Powers of Attorney and Appointments of Enduring Guardians. He can also assist you implement comprehensive Buy-Sell Agreements and other business succession strategies. Contact Damien Lehmann: Ph: MARYKE HILL Maryke assists individuals, families and businesses in a wide variety of matters. She has particular experience in property law and business sales. Maryke can assist you to implement Estate Planning solutions that align with your property and business succession plans. Contact Maryke Hill: Ph: maryke@andreyev.com.au

37 34 DIY Probate Kit (SA) KASIA MACZUGA Kasia has successfully lodged many probate applications in South Australia. She has dealt with Estates involving overseas and high value asset-holdings. She uses her wealth of experience to identify potential issues and then expertly guide our clients through the process of applying for a grant of probate. If you have been appointed as an executor of a Will and you re not sure where to start, Kasia can help. Contact Kasia Maczuga: Ph: kasia@andreyev.com.au CATHERINE FAIRLIE Catherine is experienced with both the probate application process and in dealing with estate administration. She has particular expertise in finding practical ways to guide clients through difficult situations involving estates such as: - obtaining title to assets located interstate; - resolving conflict amongst the executors or beneficiaries of an estate; and - overcoming novel issues raised by the Probate Registry. Contact Catherine Fairlie: Ph: catherine@andreyev.com.au If we sound like people you can work with, call us now on Need more information? Visit our website

38 35 DIY Probate Kit (SA) Important Disclaimer This booklet contains general information only, and is not to be construed as providing legal advice. As the law differs in each legal jurisdiction in Australia, and may be interpreted or applied differently depending on your location or the location of the estate, this booklet is not to be used as a substitute for legal advice tailored to your individual situation. Use of this booklet does not create or constitute a solicitor-client relationship between Andreyev Lawyers and any user of the booklet.

39 36 DIY Probate Kit (SA) How to contact us Phone: Website: Adelaide: Level 4, 29 King William Street, Adelaide SA 5000 Sydney: Level 15, 45 Clarence Street, Sydney NSW 2000 Melbourne: Level 4, 459 Little Collins Street, Melbourne VIC 3000

40 37 DIY Probate Kit (SA) Liability limited by a Scheme approved under the Professional Standards Legislation. Legal practitioners employed by Andreyev (Sydney) Pty Ltd A.B.N and Andreyev (Adelaide) Pty Ltd A.B.N are members of the Scheme