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If there is a will

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. Small estates can often be handled without obtaining a grant of probate but large amounts of money and assets such as land cannot be transferred or sold without a grant of probate. If a will is defective or is challenged, it may not be possible to obtain probate of it.

If no executor has been appointed or no executor is able or willing to handle the estate, an application must be made for a grant of letters of administration with the will annexed.

A grant of probate or letters of administration with the will annexed also gives protection to the beneficiaries, who can be assured of being the only people who will receive the property of the deceased. If another person disputes their claim by the production of another will, the only way that person can receive any of the estate is to apply to the court to revoke or change the grant of probate.

For a grant of probate to be made, there must be a will. However, often the family do not know whether or not the deceased left a will or, if there is a will, where it can be found. If the will is not with the deceased's personal papers, checks could be made with the deceased's bank, lawyer or accountant. A deceased may have left a will with the Public Trustee or a private trustee company. If no will can be found, the person is treated as having died without a will intestate. See If there is no will.

If there is a will  :  Last Revised: Tue Jan 7th 2020
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.