Dealing with a loved one’s estate after they’ve passed away can be overwhelming. Many Australians find themselves unsure about whether probate is necessary for their situation. Consulting with qualified lawyers for a deceased estate early in the process can help clarify your legal obligations and simplify what might otherwise be a complex process.
Key Takeaways
- Probate is generally required for real property transfers, substantial bank holdings, and share transfers
- Assets held in joint tenancy, those with valid beneficiary nominations, and small estates often don’t require probate
- Requirements vary significantly between Australian states and territories
- Failing to obtain probate when required can lead to personal liability for executors
- Professional legal advice is recommended for complex estates or when disputes are likely
What is probate in Australia?
Probate is the legal process that validates a deceased person’s will and authorises the executor to administer the estate according to the deceased’s wishes. It’s essentially the Supreme Court’s official recognition that the will is valid and the named executor has the authority to act.
Probate differs from letters of administration, which are required when someone dies without a valid will (intestate) or when no executor is available to act. Letters of administration appoint an administrator (typically a close family member) to distribute the estate according to intestacy laws.
Each Australian state and territory maintains its own probate registry within its Supreme Court, with varying rules, thresholds, and procedures. For example, NSW and Victoria have more streamlined processes for smaller estates, while Western Australia has specific requirements for property transfers.
“Understanding whether probate is required in your specific circumstances can save considerable time, money and stress during an already difficult period.” – Tonkin Legal
Situations requiring probate
Several common scenarios typically necessitate obtaining a grant of probate:
Real property transfers generally require probate unless the property was held in joint tenancy with automatic survivorship. Land titles offices across Australia usually won’t transfer property without this formal authority.
Financial institutions often require probate for accounts exceeding certain thresholds. These thresholds vary by institution but commonly range from $50,000 to $100,000 for major banks.
Share registries and investment platforms typically require probate to transfer ownership, particularly for holdings above $15,000-$25,000, depending on the company’s policy.
Contested wills or situations where the executor’s authority might be questioned almost always require probate to establish clear legal authority.
Estates with assets in multiple states or overseas jurisdictions generally need probate, sometimes requiring additional procedures like resealing of probate in different jurisdictions.
When you can skip probate
Probate isn’t always necessary. Here are situations where you might avoid this process:
Small estates
Many institutions have threshold policies that allow the release of assets without probate for smaller estates. These thresholds vary by state and institution but often range between $50,000 and $100,000.
Jointly held assets
Assets held in joint tenancy (common for married couples) automatically pass to the surviving joint tenant without requiring probate. This includes joint bank accounts, property, and investments.
Assets with beneficiary nominations
Superannuation, life insurance policies, and similar assets with valid binding death benefit nominations typically bypass the estate entirely, flowing directly to nominated beneficiaries without probate.
Trust-owned assets
Assets held in family trusts or other trust structures don’t form part of the deceased’s estate and therefore don’t require probate to transfer.
Applying for probate: Step-by-step
If you determine probate is needed, here’s the general process:
- Gather essential documents: original will, death certificate, detailed inventory of assets and liabilities with valuations
- Prepare the necessary court forms specific to your state/territory
- Place advertisements of your intention to apply for probate in approved publications
- Submit your application to the Supreme Court registry in the relevant state
- Pay the filing fee (varies by state and estate value, typically $600-$2,000)
- Respond to any requisitions or questions from the court
- Receive the grant of probate (usually takes 3-8 weeks from filing)
Once granted, probate gives the executor legal authority to collect assets, pay debts, and distribute the estate according to the will.
Alternatives when probate isn’t required
When probate isn’t necessary, executors can use several alternatives to transfer assets:
Death certificate plus identification may be sufficient for smaller bank accounts and some share registries.
Statutory declarations explaining why probate isn’t required can help with certain institutions.
Small estate procedures are available in some states, providing simplified processes for estates under certain thresholds.
Indemnity bonds can sometimes be used with financial institutions to release funds without probate, though these are becoming less common.
Risks of avoiding probate when it’s needed
Trying to circumvent probate when it’s legally required carries significant risks:
Executors may face personal liability if they distribute assets without proper authority and claims later arise against the estate.
Assets can remain frozen indefinitely if institutions refuse to release them without probate.
Beneficiaries might face difficulties accessing their entitlements, potentially leading to disputes and relationship breakdown.
Creditors or tax authorities might pursue executors personally if estate debts remain unpaid due to improper distribution.
When to seek legal advice
While simple estates can sometimes be administered without legal help, professional advice is recommended when:
The estate includes high-value or complex assets like businesses or commercial property.
Family disputes or potential contestation of the will seem likely.
Assets are spread across multiple jurisdictions or overseas.
The deceased had complex financial arrangements, significant debts, or potential tax issues.
You’re unsure about whether probate is required or how to proceed.
Conclusion
Determining whether probate is required depends on various factors including estate size, asset types, and state-specific regulations. While smaller estates with straightforward assets might avoid probate, larger estates or those with real property typically require formal court approval. When in doubt, consulting with Tonkin Legal can help clarify your obligations and ensure you’re taking the appropriate legal steps. Taking the time to understand your specific situation now can prevent significant complications later in the estate administration process.