If you’ve come to this page then you’ve probably been told that you need a lawyer to get a grant of probate, but you might not know what that is, what is involved or what it costs.
Probate is a document that is issued by a court as the formal legal proof of a will and the executor’s right to deal with the assets of the deceased. If an institution like a bank pays a deceased person’s money over to the wrong person, then they may have to pay that amount again to the correct executor. The grant of probate is something that the banks, lands titles offices and others can rely upon for their protection.
If there is no will, then there is a similar document (grant) called letters of administration.
“What is involved” and “what it costs” are more complicated questions because they both vary depending on what is required. The answers also vary state by state, but I will only be discussing the practice in South Australia. Though I do note that some other states have maximum charges for the cost of preparing a probate application.
In the simple case, a probate application involves the executor(s) swearing an oath whereby the executor promises to properly handle the estate, describes the fact of the death and says that the will was actually the deceased’s will. An affidavit must be filed setting out the assets and liabilities of the deceased at his or her death.
There are two main expenses for the grant of probate: the cost of your lawyer and the cost of the filing fee that is paid to the Supreme Court. The amount of the filing fee depends on the net value of the assets and ranges from $763 to $3,051 at the date of writing. There may also be some search expenses.
In South Australia, the benchmark for what is fair and reasonable for lawyer’s fees is the Supreme Court Scale, which sets out rates for charges based upon the nature of the work to be done. Some lawyers charge a proportion of the scale, or a fixed price, but many lawyers charge at an hourly rate regardless of the complexity of the work.
So how much should a lawyer charge for preparing an ordinary grant of probate? By my calculations the lowest realistic cost at the scale would be about $1,300 (with and inclusive of GST) for the simplest of the simple, but more likely in the range of $1,500 to $2,000 for most run of the mill matters where the client requires a little bit of guidance but not much.
You will find firms that charge more, especially those who charge at an hourly rate. Don’t get me wrong, the scale does provide for some items to be charged at an hourly rate (presently $407 with and inclusive of GST) but there are parts of the work that don’t justify that full rate of charge and many firms charge higher hourly rates. Some lawyers will claim that although they have higher rates they are more efficient than other lawyers such that it works out the same or better for the client. Where that’s true you will see it reflected in the overall amount that they propose to charge you.
We charge less than the scale and offer a fixed price for simple grant applications, which at the date of writing is
$1,250 plus the filing fee and any search expenses. Updated: Please see our current fees and charges here.
That does not include additional advice or assistance in connection with the administration of the estate once the grant has been obtained (see below).
More involved situations
There are, of course, many situations where probate is more complicated.
Additional work may be required where:
- There are a large number of assets or assets that are hard to identify or value
- The will is a homemade will or has been made with a will-kit
- The will has been damaged, altered or marked
- A paperclip has been put on the will at some time, or a staple removed
- More than one pen has been used to sign and witness the will
- A date or signature is missing from the will
- The name of the deceased or the name of an executor is wrong
- The date of death is uncertain
- The will is written poorly, or does not refer to how it was signed and witnessed
- The deceased has left a handwritten note containing gifts
- The deceased suffered from a mental or other legal incapacity around the date when the will was made
- There is no executor able to act and those who should benefit from the will are minors or are suffering from a mental incapacity
- There is a dispute about whether the will is valid or the deceased’s last will
- There was no will and there is a dispute about whether someone was a domestic partner of the deceased
- A caveat has been lodged preventing a grant from being made
In many situations the requirements of the court can be satisfied with an additional affidavit or two setting out the relevant circumstances. In those cases it would be rare for the lawyer’s additional costs to be less than about $400 or more than $2,500 (at scale).
Other situations can unfortunately only be addressed by making an application to the court seeking orders in connection with the estate, which may cost several thousands more even if there is no dispute. Disputes about probate can be extremely expense.
Administration work and disputes
The above costs are for getting the grant of probate or letters of administration. Once the grant has been made it can then be used to administer the estate. Lawyers often do assist with the administration but in simple cases it is often not needed or only partly needed.
Administration of an estate normally involves three main tasks. The first task is getting in the assets of the estate. This may mean preparing documentation for banks so that accounts can be withdrawn and closed, assisting with the conveyancing on the sale of real property, or something more onerous. The next task is paying off all debts and expenses of the estate. The last main task is to distribute the estate in accordance with the will (or in the absence of a will, the laws of intestacy).
The cost depends entirely upon how much work is to be done by the lawyer. The range we normally give for small and very simple estates is $0 to $1,000, excluding conveyancing. More involved but still fairly ordinary estates might be in the order of $1,500 to $4,000, but it really does depend upon the individual circumstances of the estate and the client.