If you’re dealing with a loved one’s estate, one of the first practical questions that comes up is:
Do I need probate?
It’s a completely normal question, and often one of the most confusing.
The short answer is: it depends.
This guide gives general information to help you understand common situations where probate may or may not be required.
Plain English Summary:
Probate is the legal process that can allow an executor to administer the estate after someone dies.
It gives the executor recognised authority to deal with the estate assets, deal with institutions, and carry out the wishes in the will.
What Is Probate (In Simple Terms)
Probate is the court confirming the will, and that the executor has authority.
Probate is often required before:
- the bank allows access to certain accounts
- properties can be transferred or sold
- the executor can distribute the estate according to the will (after appropriate debts and liabilities)
Learn more: What is probate
When Is Probate Required?
In Australia, probate is often required when institutions require a court grant before releasing assets.
Probate is more likely where:
1. There are significant assets in the deceased’s sole name
Depending on value and policy, institutions may require probate before releasing:
- sole-name bank account
- shares
- investments
If these assets are held only in the deceased’s name, institutions often require probate before releasing funds.
Missing One Document Can Add Weeks to Probate.
Many of those delays can be avoided
Our simple step-by-step guide helps you understand the process, gather the right documents and avoid common issues that can slow things down.
2. There is real estate (property)
Real estate held solely in the deceased’s name often requires probate or administration before transfer or sale.
3. Financial institutions request it
Financial institutions set their own deceased estate requirements and thresholds.
Some institutions may release smaller balances without probate, depending on their policy and the circumstances.
4. The estate is complex
Complexity, multiple assets or disputes can make probate or legal guidance more likely.
When Probate May NOT Be Required
Not every estate needs probate; it depends on assets, ownership and institution requirements.
You may not need probate if:
1. Assets are jointly owned
Assets held as joint tenants (for example, a house owned by spouses) often pass to the surviving owner; tenants in common can be different.
2. The estate is small
Some institutions may release funds without probate for smaller balances, depending on their own thresholds and requirements.
This varies between organisations, but generally applies where assets are relatively modest and straightforward.
For example, probate may be less likely in a smaller estate which includes:
- a bank account with a lower balance, depending on the institution
- no sole-name real estate and assets are modest/simple.
- minimal or no investments
In these cases, banks may allow funds to be released with:
- a death certificate
- their own deceased estate forms/declaration/indemnity
It’s important to note that thresholds and requirements differ between institutions, so you’ll need to check with each one directly.
3. Assets have named beneficiaries
Certain assets, such as:
- superannuation
- life insurance
may be paid directly to beneficiaries without going through probate.
How to Tell If You Need Probate
To work out whether probate is required, some useful practical steps are:
- Identify what assets exist
- Check how they are owned
- Contact institutions to understand their requirements
This can take time, it’s completely normal not to have all the answers immediately.
What If There Is No Will?
If there is no valid will, the relevant grant is usually letters of administration rather than probate.
Letters of administration is a court grant that authorises an administrator to administer the estate.
Learn more: Probate without a will
Can Probate Be Avoided?
Probate may not be required depending on ownership and asset structure.
However, generally this is not always possible, especially after someone has passed away.
Learn more: Can probate be avoided
How Long Does Probate Take?
If probate is required, many people want to understand how long the process will take.
???? Learn more: How long probate takes
How Much Does Probate Cost?
Costs can vary by state, estate value and whether professional help is used.
Learn more:
What Should You Do Next?
If you’re unsure whether probate is required, the next step is usually to get clarity on the estate.
Next general steps, if appropriate are:
- identify assets
- contact banks and institutions
- review the will (if there is one)
If things feel unclear or overwhelming, getting guidance early may help avoid unnecessary delays.
Get Help Understanding Your Situation
Every estate is different.
If you’re not sure whether you need probate, you’re not expected to figure it all out on your own.
You can:
- continue reading our guides
- use our tools to assess your situation
- If you’d like to speak to a professional, you can request a referral. We may receive a referral fee if you proceed with a referred provider.
Key Takeaway
- Probate is sometimes required, not always
- It usually depends on how assets are owned and what institutions require
- Some steps may be possible without probate, but certain assets may require a grant before they can be dealt with.
If you’re unsure, that’s completely normal, this is one of the most common questions people have.
Related Guides
- What to do when someone dies
- What does an executor do
- Executor responsibilities checklist
- How to apply for probate
You’re doing the right thing by seeking clarity. Take it one step at a time.