What Is Probate and When Is It Required?

Detailed Explanation

"You'll need probate for that" is often the first time anyone hears the word. Here's what's actually going on. See the Wills, Probate & Estates hub for how this fits alongside the rest of estate administration.

What probate is

When someone dies, their assets don't move by themselves. Banks, land registries, and share registries need legal certainty about who can act. Probate is that certainty: the Supreme Court of the relevant state examines the will and formally recognises the executor's authority. The sealed grant of probate is the document institutions then rely on to release funds and transfer property.

• With a valid will: the executor applies for probate.
• No will (intestacy), or no willing executor: the closest next of kin applies for letters of administration, and the estate is distributed according to the state's intestacy formula rather than personal wishes. See what happens if someone dies without a will for exactly how that formula works.

When probate is and isn't required

There is no universal rule; it depends on what the person owned and how:

• Real estate solely in their name: probate is effectively always required to transfer or sell it.
• Jointly-held assets (the family home owned as joint tenants, joint bank accounts): pass automatically to the surviving owner. No probate needed, just the death certificate. This only applies to assets held as joint tenants, not tenants in common; see what happens to jointly owned property or bank accounts when one owner dies for the distinction.
• Bank accounts, shares, and term deposits in sole name: each institution sets its own threshold. Small balances are typically released against a death certificate, will, and indemnity form; larger balances (commonly above somewhere between $20,000 and $100,000, varying by institution) require the grant.
• Superannuation and life insurance: usually paid by the fund's trustee directly to dependants or the estate under its own rules, often with no probate needed, but the fund decides. See how superannuation is paid out when someone dies for exactly how that decision gets made and how it's taxed.
• Cars, household goods, small estates: generally transferable without a grant.

Practical method: list every asset, phone each institution's bereavement team, and ask "what do you require?" Only apply for probate if at least one of them demands it.

What it costs

Court filing fees are commonly several hundred to a few thousand dollars, scaled to estate size in most states (as of 2026, check the relevant court's current schedule). See how much does probate cost: NSW vs Victoria vs Queensland for the actual current fee tiers in the three largest states. Solicitors' professional fees come on top if engaged. All legitimate estate expenses, including the funeral and the deceased's own debts, are paid from the estate before beneficiaries receive anything. See do you inherit a person's debts when they die in Australia if you're worried this means family becomes personally liable (it generally doesn't).

For where this sits in the broader sequence after a death, see what to do when someone dies in Australia.

Things to Consider

• Funeral first, probate later. Funeral costs never wait for probate. Banks release funds from the deceased's account against the funeral invoice as standard practice, and help exists even if the estate has nothing left to draw on.
• The will's location matters early. Check with their solicitor, the Public Trustee, their bank, and their papers. The original (not a copy) is required for probate.
• Executors can renounce. Being named doesn't compel you to act; you can renounce before starting, or appoint a trustee company or solicitor to administer professionally (paid from the estate).
• State rules differ. Thresholds, fees, forms, and advertising requirements vary between states. Use the Supreme Court website for the state where the person lived and owned assets.
• Death occurred overseas? A foreign death certificate generally needs a NAATI-certified translation (and sometimes formal authentication) before an Australian probate registry will accept it. See how do you get a death certificate when someone dies overseas, and build the extra time this takes into the estate timeline.
• Tax doesn't die with the person. A final individual return and possibly estate returns are due; the ATO's deceased-estates guidance covers what executors must lodge.

Common Mistakes

• Applying for probate nobody requires. For modest estates, ring the institutions first. Families spend thousands on grants no one asked for.
• Distributing too early. Executors who pay beneficiaries before debts, tax, and potential family-provision claims are settled can become personally liable. Most solicitors advise waiting out the claim period (roughly 6 to 12 months from death, varying by state).
• Treating the reading of the will as the process. Dramatic will readings are cinema; the real process is inventory, paperwork, and patience.
• Poor records. An executor who can't show where every dollar went inherits family conflict. A simple ledger from day one prevents it.
• Ignoring conflict until it hardens. If beneficiaries are heading for dispute, early mediation or legal advice is vastly cheaper, both financially and emotionally, than a contested estate.