New Probate Fees in South Australia

A new regime of Probate Fees

From 28 February 2016 a new regime of fees were introduced for lodging applications in the probate jurisdiction of the Supreme Court of South Australia. 

The introduction of the new fees is noteworthy on several counts. 

Firstly, the changes to the fees were made outside of the normal fee increase cycle.  Ever since I can recall, the fees in the probate jurisdiction have always been increased such that the fee increases take effect on the 1st of July of each year.  Indeed, there was a fee increase on 1 July 2015.  Therefore, the variation to the probate fees effective from 28 February 2016 reflect the second change to the fee structure within the current financial year. 

Secondly, in direct contrast to the manner in which the probate fees have been previously charged, the new probate fees now provide for a range of fees under a scale based upon the gross value of the deceased estate. 

The most common applications lodged in the probate jurisdiction of the Supreme Court are applications for grants of probate or administration in respect of a deceased estate. 

Applications for a grant of probate are made by an executor named in the will when it is necessary for the executor to obtain authenticated evidence from the Court of the executor’s title to administer the estate as the personal representative of the deceased. 

Where a person possessed of property, whether real or personal, dies without a will, or without an executor surviving or having been appointed, or where the executor named in the will refuses to act, the Court will grant to a proper person an authority under the seal of the Court, called letters of administration, by which the grantee, known as the administrator, becomes clothed with the powers and duties similar to those of an executor. 

Applications for probate or letters of administration will have to be lodged by the personal representative of the deceased when, amongst other things, the estate contains:

  • land;
  • money at bank where the total balances of the accounts held with a bank exceed about $50,000.00 to $75,000.00;
  • shares in publicly listed companies (apart from small holdings);
  • a bond refundable by a nursing home in circumstances where the rules of the nursing home require the production of a grant before the bond is refunded. 

Applications for grants of probate or administration are not uncommon and are often and unavoidable during the course of administering a deceased estate. 

Prior to the introduction of the new fee structure, the fee to lodge an application for probate or administration in respect of a deceased estate was a flat fee of $1,114.00, irrespective of the size of the estate. 

Probate Fees

Now the application fees are based on the following scale:

Estate Value

Probate Fee

Where the gross value of the estate is $200,000.00 or less

$750.00

Where the gross value of the estate is more than $200,000.00

but less than or equal to $500,000.00

$1,500.00

Where the gross value of the estate is more than $500,000.00

but less than or equal to $1,000,000.00

$2,000.00

Where the gross value of the estate is more than $1,000,000.00

$3,000.00

It should be noted that the applicable regulations define “gross value” of the estate without taking into account any debts or encumbrances in the estate.  Therefore, for the purpose of determining the value of a deceased estate in the context of the above scale, the amount (say) of a loan secured by a mortgage on land in the estate, is ignored. 

Therefore, the greater the value of the estate, the greater the fee charged by the Court to extract the grant of probate or administration.  To me, this looks more like a tax or levy than a humble Court filing fee. 

What is the probate fee situation in other states? 

In Victoria, the current probate fee is $306.00 where the gross value of the estate is $1,000.00 or more plus an advertising fee of $43.50. 

In Queensland, the current probate fee is $637.40 plus an advertising fee of approximately $614.00. 

In Western Australia, the current probate fee is $304.00. 

In New South Wales, the Court fee for filing an application for a grant of probate or administration is also based upon a sliding scale based on the gross value of the estate and the fees are commensurate with those which are now applicable in South Australia.

 

If you need help with wills, estates, and/or sucession planning please contact us today. 

 

Charles Beresford

26 May 2016