The Best Probate Resource for a Surviving Spouse in South Australia

For a surviving spouse in South Australia, the best resource depends on what the estate actually contains. If the accounts are jointly held and the balances are modest, you may not need probate at all. If the deceased held accounts in their sole name above the bank's internal threshold, or if they owned property as a sole proprietor or tenant in common, you will. The right resource is one that tells you which situation you are in — and what to do in either case.

The South Australia Probate Process Guide is specifically built for this distinction. It covers every threshold — statutory, institutional, and judicial — under the Succession Act 2023 that took effect on 1 January 2025, with the CourtSA portal procedures and bank-by-bank release requirements for surviving spouses navigating the post-death financial freeze.

What Happens to Assets When a Spouse Dies in South Australia

The answer depends on how each asset was held. South Australian law and bank policy treat jointly held and solely held assets very differently, and the gap between them determines whether you need a Supreme Court grant.

Jointly Held Assets: Usually No Probate Required

If you and your spouse held a bank account or property as joint tenants, the asset passes to you automatically by the legal rule of survivorship — without any court application, grant of probate, or letters of administration. The process is:

• Joint bank accounts: Present the bank with a copy of the death certificate and your identification. The account is converted to your sole name. Standard bank bereavement procedures apply, typically resolved within two weeks.
• Joint tenancy property: Lodge an "Application to Register Death by Survivor" (Form DOC 73) with Land Services SA, accompanied by the death certificate, verification of identity, and a $198 lodgement fee (2025/2026 rate). No Supreme Court involvement required.

Solely Held Assets: Bank Thresholds Determine Whether Probate Is Needed

If your spouse held a bank account in their sole name, the bank will freeze the account after death. Whether they release the funds to you without a grant of probate depends on the account balance and the bank's internal policy — not South Australian law.

The $15,000 direct transfer rule (Section 100, Succession Act 2023): Any institution holding $15,000 or less of the deceased's personal property can transfer it directly to a surviving spouse without requiring a formal grant. This is a statutory right, but banks are not always trained to acknowledge it promptly.

Above $15,000 — bank-by-bank thresholds:

These thresholds are institutional policies, not statutory requirements. The bank's bereavement team has discretion to release funds with an indemnity form signed by you, but BankSA is notably strict: if the solely held balance exceeds $50,000, expect a formal demand for a grant of probate before any release.

Property Held in the Deceased's Sole Name: Probate Always Required

If your spouse owned property in their sole name — or as a tenant in common, where their share does not automatically pass to you — you cannot sell it, transfer it, or deal with it in any way until a Transmission Application is lodged with Land Services SA. That application requires a Grant of Probate. There is no alternative pathway for real property in South Australia.

The Intestacy Rules for Surviving Spouses (No Will)

If your spouse died without a valid will, the Succession Act 2023 determines who inherits. For a surviving spouse or domestic partner:

• Estate value $120,000 or less: You inherit the entire estate.
• Estate value above $120,000: You inherit all personal chattels (furniture, vehicles, personal effects), the first $120,000 as a preferential legacy, and 50% of whatever remains. The other 50% is shared equally among the deceased's children.

Note that the $120,000 threshold is higher than under the old Administration and Probate Act 1919. Any resource that quotes a lower figure is using repealed law.

If you need to apply for Letters of Administration (the intestacy equivalent of probate), the application goes through the CourtSA portal and includes an additional requirement: you must advertise your intention to apply in both the South Australian Government Gazette and a local newspaper before the application will be processed.

The Small Estate Route: Section 73 (Public Trustee)

If the estate's total gross value is $100,000 or less and it includes no real property, you have an additional option. Under Section 73 of the Succession Act 2023, the Public Trustee of South Australia can administer the estate without a Supreme Court application. The Public Trustee publishes a gazette notice, which creates a deemed grant.

The cost: the Public Trustee charges 4.4% of the gross estate value as a capital commission on estates up to $200,000, plus an annual audit fee of $204. On a $100,000 estate, that is $4,400 in commission — compared to $987 for a CourtSA filing fee if you apply yourself. The trade-off is time and administrative effort, not cost.

What Every Surviving Spouse Needs to Know About Superannuation

Superannuation generally does not form part of the deceased's estate and does not require probate. The super fund trustee decides who receives the death benefit, based on any binding death benefit nomination your spouse made. If there is no binding nomination, the trustee has discretion — and this decision is entirely separate from the probate process.

Notify the super fund as soon as possible. They will send you a claim form and explain what evidence is required. Do not wait for probate to be resolved before making the super claim.

Why Most Free Resources Fail Surviving Spouses

The two most common failures of free probate resources for surviving spouses:

They use pre-2025 law. The Administration and Probate Act 1919 was repealed on 1 January 2025. The intestacy thresholds, small estate provisions, and executor duties are all different under the Succession Act 2023. Content that references the old Act is misleading.

They do not address the bank-by-bank reality. The Section 100 statutory right gives any institution permission to release $15,000 or less without a grant — but it does not require them to do so. The institutional policies above $15,000 are what actually determine whether you need to file with the court, and those policies vary significantly by bank. No government website maps these thresholds in one place.

Who This Resource Is For

The South Australia Probate Process Guide is specifically the right resource when you are a surviving spouse who:

• Has been told by a bank that the account is frozen and needs to know exactly what threshold applies and what document to present to get funds released.
• Is not sure whether to apply for probate and wants a clear decision framework before spending $987–$3,945 on court fees.
• Has been named as executor in your spouse's will and needs to understand the CourtSA portal procedure, the identity verification requirements under Rule 351.8, and the will marking steps under Rule 356.5.
• Has a solely held property in the estate and needs to understand the Transmission Application process with Land Services SA after the grant is issued.
• Is managing the estate from interstate or overseas and cannot travel to the Probate Registry in Victoria Square.

Who This Is NOT For

A probate guide is not the right primary resource if:

• Your spouse died without a will and there is a dispute among family members about who is entitled to administer the estate or inherit from it.
• The estate is insolvent — debts exceed assets.
• A family member has lodged a probate caveat through CourtSA to halt the grant.
• The estate includes significant business interests, complex investment structures, or foreign assets.

In these situations, a succession solicitor is the appropriate first step.

FAQ

Do I need probate if my spouse dies and we owned everything jointly?

If every asset — bank accounts, property, investments — was held as a joint tenancy, probate is likely not required. Joint tenancy assets pass automatically to you by survivorship. You need only present the death certificate to the bank and lodge an Application to Register Death by Survivor with Land Services SA for any jointly held property. If your spouse held any assets in their sole name above the bank's internal release threshold, or if the property was held as tenants in common, a grant will be required for those specific assets.

What is the $15,000 Succession Act rule for surviving spouses?

Section 100 of the Succession Act 2023 permits any institution or person holding up to $15,000 of the deceased's money or personal property to transfer it directly to a surviving spouse, domestic partner, or child — without requiring a grant of probate or letters of administration. This applies even if the total estate is larger; it is an asset-by-asset threshold, not an estate-wide threshold. A $40,000 bank account does not qualify for the $15,000 rule.

BankSA has told me I need probate. Is that correct?

BankSA (a Westpac subsidiary) has an internal policy of requiring a grant of probate for solely held accounts with a balance above approximately $50,000. This is consistent with their published bereavement procedures. Even though South Australian statute only mandates a grant for bank releases above $15,000, each bank can set a more restrictive internal threshold and BankSA enforces theirs. The guide explains the specific approach to request an informal release and the exact indemnity documents BankSA requires.

Can I apply for probate myself as a surviving spouse?

Yes. South Australian law permits self-represented applicants, and the CourtSA portal accepts applications from executors without legal representation. As a surviving spouse named as executor in your partner's will, you can file the entire application yourself. The key requirements are the 100-point identity verification under Rule 351.8 (completed before a Justice of the Peace or similar), the physical marking of the original will under Rule 356.5, and the physical lodgement of the will to the Probate Registry.

How long will the bank freeze last?

For joint accounts, the freeze typically lifts within one to two weeks of presenting the death certificate and completing the bank's bereavement paperwork. For solely held accounts requiring probate, the freeze continues until the grant is issued and presented to the bank — a process that commonly takes four to eight weeks from application submission if the file is complete. BankSA and other institutions will release funds for the funeral directly to a funeral director upon presentation of a valid tax invoice, regardless of the total account balance, while the broader estate process continues.

The most important step for a surviving spouse in South Australia is working out which of the deceased's assets require probate before filing anything. The South Australia Probate Process Guide includes the four-step decision framework — covering joint tenancy, bank thresholds, the Section 73 small estate route, and the Section 100 direct transfer rule — so you know exactly where you stand before spending money on court fees or professional advice.

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