For over 168 years Rudall & Rudall has been one of South Australia’s leading providers of legal advice in deceased estates.

Book Appointment

We understand that acting as an executor or handling the affairs of a loved one after they have died can be extremely overwhelming and stressful but we are here to help.

Our lawyers are experienced in acting for executors, administrators, family members and third parties in all areas including probate, administering estates, estate disputes and deeds of family arrangement.

Dealing with family estates can be complex and we understand the care that needs to be taken.

Questions to Consider

What is probate?

There are many misconceptions about the term ‘probate’. The term has its origins in the latin ‘probare’ which means ‘to prove’. Probate is a document provided by the Supreme Court of South Australia – where the Will has been proved to its satisfaction. Probate must be produced to various authorities and institutions by executors in order to deal with the estate. For example, if land is to be sold or transferred then probate must be produced to the Land Titles Office before a dealing can be registered. If a bank account needs to be closed, the bank requires the probate before paying the proceeds to the executors. We can prepare the application for probate navigating the complexities and technicalities in the relevant rules and forms.

What are letters of administration?

Letters of Administration is similar to probate but is the name of the document given to an administrator where a person dies without leaving a Will or dies leaving a Will which does not effectively appoint an executor. When a person dies without a Will they are said to die ‘intestate’. In these circumstances, the provisions of the Administration and Probate Act determine who can administer the estate and how the estate is to be distributed. We prepare applications for proposed administrators to the Supreme Court of South Australia. Once the Probate Registrar is satisfied about the application, it issues a document called ‘Letters of Administration’ which can be produced to financial institutions and government departments (such as the Land Titles Office) where there are assets in the name of the deceased. Where a person dies with a Will which does not effectively appoint an executor, we prepare applications for ‘Letters of Administration with the Will annexed‘.

What is a reseal of a grant?

Usually a grant of probate or administration will be applied for in the appropriate Court of the state, territory or country where the deceased person was residing when they died which will generally be the location where the majority of the deceased’s assets will need to be collected and distributed If a deceased person owned assets in different states or territories of Australia, or in certain countries, then it is possible to have a grant issued by a Court in one jurisdiction recognised in another state, territory or country. This process of recognising the grant made in the other state, territory or country is called “resealing“. The process for resealing differs from place to place but generally follows a similar process. Resealing is considered a complex probate matter and it is wise to obtain legal advice.

What is estate administration?

Estate administration is the term used to described how a deceased person’s estate is dealt with after their death. It is the process by which an executor or administrator gathers in the property, protects it, pays debts and distributes assets to the beneficiaries. Depending on the complexity of the estate and the number of assets and beneficiaries, an estate can take anywhere from months to several years to administer. Apart from being time consuming, this process is a serious legal responsibility. We act for executors and administrators to ensure that their legal duties are discharged and that the estate is distributed to beneficiaries as soon as possible.

What are more complex estates?

Some estates are more complicated than others. We have the expertise to resolve these issues, for example:
  • Due execution – where there is a question about the proper execution of the Will
  • Plight and condition – where the Will appears damaged and creates a question as to whether the person making the Will intended to revoke it
  • Alias – where the person making the Will holds assets in various names, sometimes a subtle variation of spelling or the decision to include a middle name makes a difference
  • Appointment of agents – where the administrator lives interstate
  • Verification of translation of a Will or other document
  • Citations to accept or refuse probate or letters of administration
  • Orders for a grant of probate for an informal Will – where the person making the Will has not complied with all of the requirements for a valid Will
  • Orders for rectification of Wills – to address an error in the Will
  • Orders for a grant of probate for a copy of a Will
  • Applications for double probate
  • Renunciation of probate, letters of administration and letters of administration with the Will annexed
  • Additional assets and liabilities
  • Caveats and warnings to caveats.

What do I need to know about will kits and informal wills?

At a fraction of the cost of instructing a lawyer to prepare a Will, we appreciate the attraction of Will Kits Wills or even trying to do it yourself. However, while money can be saved in the short term, the long term costs to an estate can be substantial. We routinely are engaged to act for estates where Will Kits or Informal Wills have been prepared creating significant complications and expense for the estate which could have been avoided by engaging a lawyer to prepare a Will.

How do I contest a will?

Where a person feels that they have not received adequate provision under a Will (or under an intestacy) they may make an application to the Supreme Court of South Australia pursuant to the Inheritance (Family Provision) Act for further provision. The categories of people who can apply include spouses, children, grandchildren, parents, brothers and sisters. An application is commenced by court proceedings in the Supreme Court of South Australia which must be issued and served on the executors within 6 months of the grant of probate or letters of administration. It is therefore vital that you immediately obtain legal advice. Alternatively, it is possible to challenge the validity of a Will on a variety of other grounds, for example:
    • The person who made the Will did not have the requisite mental capacity to understand the nature and effect of the Will;
    • The person who made the Will did not know and did not approve of the contents of the document he or she signed;
    • That undue influence or undue pressure was exerted upon the person who made the Will such that the Will represents the wishes of another person
    • That the signature on the Will has been forged;
    • That the Will was procured by fraud, in particular false representations.

What are declarations of domestic partnerships?

A domestic partnership is essentially the legal term most people know refers to a ‘defacto’ relationship but includes opposite sex couples, same-sex couples, and companion relationships. A declaration from a Court is required in a variety of circumstances in connection with deceased estates:
  • where a domestic partner has not been adequately provided for in a will and is pursuing a claim under the Inheritance (Family Provision) Act;
  • where there is no will and the intestacy provisions of the Administration and Probate Act apply entitling a surviving partner to share in the distribution of the estate;
  • where death has been caused by the negligent act of a third party (eg in a road accident) and the surviving partner may claim damages from the third party;
  • where the deceased was a contributor to a State superannuation scheme and the surviving partner may apply to the administrators of the scheme for a spouse’s pension;
  • where death has been caused by a homicide and the surviving partner may claim compensation under the Victims of Crime Act
  • where death occurs at work then a surviving partner may make a claim under the Return to Work Act.

What are deeds of family arrangement?

A Deed of Family Arrangement is a document recording the distribution of an estate where it is not made in accordance with the terms of the Will or the laws of intestacy. The purpose of the Deed is to document the agreed distribution and to protect the personal representative (executor or administrator) from a subsequent claim. Deeds of family arrangement can be used in a number of circumstances:
  • Where there are doubts about the meaning of a Will;
  • Where the beneficiaries wish to rearrange the distribution of the estate between themselves;
  • To compromise a claim against the estate where there is a challenge to the Will;
  • To create an estate proceeds trust under taxation legislation.