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SA Deceased Estate - No Will

Discussion in 'Wills and Estate Planning Law Forum' started by David Winspear, 1 July 2014.

  1. David Winspear

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    Father passed away without leaving a will. 3 siblings in South Australia. 1 sibling living in house rent free, who has fallen out with the other 2 siblings.
    Q1. How to evict sibling that is living in the house?
    Q2. How to go about selling house and divide proceeds?
     
  2. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi David

    As there is property involved, an application will need to be made to the Supreme Court in SA for Letters of Administration.

    Please look at the following links for more information:

    http://www.courts.sa.gov.au/RepresentYourself/ProbateRegistry/Pages/default.aspx

    http://www.courts.sa.gov.au/RepresentYourself/ProbateRegistry/Pages/Application-for-grants.aspx

    This should get you started on the right track. If you need further assistance, please let me know.

    Once Letters of Administration are granted, the steps to evict, sell the property and distribute the proceeds according to the SA legislation can be completed.

    Kind regards,

    James.
     
  3. David Winspear

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    Hi James,

    On further investigation and phone calls to the public trustee in South Australia, (and the family riff) that a letter of administration needs to be sort from the Supreme court of S.A.
    How do I start the procedure?
    Is it more beneficial to appoint a solicitor for the application, in saying that, what costs will be involved?
    Can you do the applications from interstate and at what costs?

    Kind regards,

    David.
     
  4. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi David

    How long ago did your father pass away?

    First - the decision of who will be the Administrator needs to be made

    How you proceed depends upon who is planned to be appointed as Administrator... given that the siblings have fallen out –– if you applied to the Court to be appointed as Administrator:
    • is there a spouse or domestic partner of your Father who would have priority over you to be appointed Administrator?;
    • will the sibling living in the house try to cause problems?;
    • do you understand what is required, the potential for action against you if mistakes are made, and are you prepared to take on the task of being the Administrator?
    If you cannot find an Administrator - use the Public Trustee (they will take over and make the application as well - see the Alternatives below).

    If you are the Administrator, or you find someone who you support for the position

    Yes, in my opinion it is more beneficial to appoint a solicitor for the application.

    These are quotes taken from the above links I provided to you...

    "A personal application is likely to be far more onerous than your friends and family will tell you.

    Making an application for a grant is not simply a matter of filling in forms and paying the fee."

    "All applications for grants must be in accordance with the Rules of Court. Those Rules govern who is entitled to claim the grant and the manner in which the application must be made.

    The Alternatives

    Applications for grants can be made by one of the following methods:
    1. Instruct a solicitor of your choice to make the application on your behalf.
      The Law Society of South Australia can provide the names of law firms who specialise in this jurisdiction.
    2. Request the Public Trustee or any one of the Trustee Companies (being a company authorised under the Trustee Companies Act, 1988) to act as an executor or administrator of the deceased estate.
    3. Prepare the documents necessary to make the application personally.
    Fees

    Solicitor - If you decide to be the Administrator, [Removed by Moderator per Community Guidelines].

    Public Trustee - Schedule of Fees

    Court Lodgement Fee

    Probate fees as at 1 July 2014
    Fee Amount
    Grants - All grants of probate or administration
    $1088.00
     
    #4 James D. Ford - Solicitor, 2 July 2014
    Last edited by a moderator: 2 July 2014
  5. David Winspear

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    Hi James,

    Firstly it isn't my father.
    I am collecting information for my ex Brother in law, whom seems to be the most appropriate person to make the application out of all the 3 siblings. Both his sisters have some problems - eldest sister has learning difficulties and is on a pension for this, whilst the other sister (who is residing in the house with her husband) is unemployed and is an alcoholic. This is the problem one.....
    The deceased ( [Name redacted by Moderator] ) was married, but she had passed away many years ago. The deceased passed away on the 01/05/2014 and a death certificate is available
    I am lead to believe that all 3 siblings must agree on appointing the Public Trustee, unless there is a letter of administration. Where the administrator can then solely appoint the Public Trustee.

    A couple of questions for you;
    Q1. Is the sibling residing in the residence with her husband entitled to "SQUATTERS RIGHTS" or any other Rights?
    Q2. If "SQUATTERS RIGHTS" apply, how can these persons be evicted?
    Q3. Is there any time constraints where this applies?

    Kind regards

    David...
     
    #5 David Winspear, 2 July 2014
    Last edited by a moderator: 2 July 2014
  6. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi David

    Thanks for clearing up the situation.

    It is preferable that all next of kin consent to the person or persons applying to be the administrators of the estate.

    If the next of kin cannot agree that your ex brother-in-law be the administrator, they might agree to the Public Trustee. If the Public Trustee is involved it can streamline the process, as the Public Trustee does not need to complete the same detailed level of paperwork.

    If you ex-brother-in-law makes the application to be the Administrator without the consent of all next of kin, he will need to detail in his application the steps he took to gain consent, etc. and the reasons why consent was not forthcoming, etc. It is more complicated.

    I have assumed that there are no other siblings who may have passed away, and have been survived by grandchildren. Please confirm.

    I will address your questions regarding the "SQUATTER'S RIGHTS" when I have more time.

    Kind regards, James.
     
  7. David Winspear

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    Hi James,

    You are correct in your assumption. There is no other siblings.

    Kind regards,

    David..
     

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