What Is Probate, and When Is It Needed?

Detailed Explanation

Many families first hear the word when a bank or a conveyancer says "we'll need to see probate." It's a formality, but an important one. Once someone dies, nobody automatically has the legal power to deal with what they owned. Probate is how a court hands that power to a named person, so that banks, land registries and share registries know who they can safely deal with. See the Wills, Probate & Estates hub for how probate fits alongside the rest of estate administration.

What a grant of probate actually does

A grant of probate is a court document. It confirms that the will is the person's last valid will and that the executor named in it has authority to act. With it, the executor can close accounts, collect money, sell or transfer property, pay debts and taxes, and then distribute what remains to the beneficiaries. Institutions rely on the grant because it protects them: if they release money to the person the court has recognised, they can't later be blamed for paying the wrong person.

The executor's job doesn't start or end with probate. The grant sits in the middle of a longer process of finding assets, paying debts and distributing the estate, covered in full in what does an executor do.

Probate with a will, administration without one

The words change depending on whether there was a valid will:

• With a will and a willing executor: the executor applies for a grant of probate.
• With no will, or no executor able or willing to act: a close relative (usually the spouse or partner, or an adult child) applies for letters of administration, and becomes the administrator. The estate then passes under the country's or state's intestacy rules rather than personal wishes. See what happens if someone dies without a will.

In many places "probate" is used loosely for both. England and Wales, for example, calls every grant "probate" in everyday guidance. Scotland uses a different word altogether (see below).

When probate is usually needed, and when it isn't

There's no single rule anywhere. Whether a grant is needed depends mostly on what the person owned and how they owned it:

• Jointly owned assets such as a home held as joint tenants or a joint bank account generally pass straight to the surviving owner, with no probate. Property held as tenants in common is different: the deceased's share goes through their estate. See what happens to jointly owned property when one owner dies.
• Assets with their own beneficiary nomination often bypass probate. Examples include life insurance with a named beneficiary, many US retirement accounts and "payable on death" accounts, and, in Australia, superannuation paid by the fund's trustee under its own rules.
• Small balances are often released without a grant. Each bank or institution sets its own limit and asks for a death certificate, a copy of the will and an indemnity form instead.
• Solely owned land or a house almost always needs a grant before it can be sold or transferred.
• Larger solely owned accounts, shares and investments usually need one too, once they are above the institution's limit.

The practical approach is the same everywhere: list what the person owned, contact each institution's bereavement team, and ask what they need. A grant is only necessary if at least one of them insists on it.

How Probate Differs Between Countries

The idea is broadly similar across common-law countries, but the court, the forms, the fees and the small-estate rules are all local.

Australia

Probate is a state and territory matter, granted by the Supreme Court of the state where the person lived or held assets. There's no national fee: some states scale the filing fee to the estate's value (NSW charges nothing on estates under $100,000, for example), while Queensland charges a flat fee. Banks set their own thresholds for releasing funds without a grant.

England and Wales

Applications go to HM Courts and Tribunals Service, mostly online. As of September 2026, GOV.UK lists no fee for estates of £5,000 or less and a flat £526 fee above that. Fees change, so check the current figure before applying. GOV.UK notes that probate may not be needed where the person held only savings accounts, or held money, shares or property jointly with others, and that each organisation sets its own rules. If inheritance tax is owed, some or all of it normally has to be paid before the grant is issued.

Scotland and Northern Ireland

Scotland has its own system. The equivalent of probate is called confirmation, and it's granted by the sheriff court for the area where the person lived. Estates worth £36,000 or less count as small estates, and sheriff clerks can help applicants complete the forms. Northern Ireland also runs its own probate process, separate from England and Wales.

United States

Probate is handled by state courts (often called probate or surrogate's courts), under each state's own laws, so the steps differ considerably from state to state. The person in charge is usually called the personal representative, whether named in a will (executor) or appointed by the court (administrator). Most states offer a simplified route for small estates. In California, for instance, heirs can collect personal property with a sworn declaration instead of probate once 40 days have passed since the death, provided the estate is below a value limit set in the Probate Code and adjusted for inflation every few years. Assets held in a living trust, in joint names with a right of survivorship, or with a named beneficiary generally pass outside probate altogether.

How it works where you are

• In Australia: how probate works in Australia, including state Supreme Court grants, institution thresholds, timing and executor duties, and probate fees in NSW, Victoria and Queensland compared.

Things to Consider

• Funeral costs don't wait for probate. In many countries, banks will pay a funeral invoice directly from the deceased's account before any grant is issued, if asked. Check with the bank.
• The original will matters. Courts generally want the original signed will, not a copy. Look through the person's papers and ask their solicitor or lawyer and bank before assuming there isn't one.
• Assets in more than one place complicate things. Property in another state or country may need its own grant, or the original grant recognised ("resealed") there. This is where advice from a probate lawyer in the relevant place is genuinely worth the cost.
• Being named executor isn't compulsory. Someone named in a will can usually step aside before they start dealing with the estate, and another executor or a close relative can apply instead.
• Taxes can come first. Depending on the country, a final income tax return, estate income tax or inheritance or estate tax may need attention before, or as part of, the probate process.

Common Mistakes

• Applying for a grant nobody has asked for. For modest estates, check with each institution first. Many small estates never need one.
• Selling or giving away assets before the grant. Until the executor or administrator has authority, property generally can't be sold, and handing out possessions early can cause both legal and family problems.
• Assuming another country's rules apply. Online advice written for England, one US state or one Australian state is often quoted as if it were universal. The court, fees and thresholds that matter are those where the person lived and where their assets are.
• Distributing the estate too early. Executors who pay beneficiaries before debts, taxes and any claims against the estate are settled can end up personally liable for the shortfall.
• Keeping no records. A simple ledger of every amount received and paid out, kept from day one, prevents most disputes with beneficiaries.