Probate is a court grant confirming a will's validity and an executor's authority, but it isn't required for every estate. Jointly-held assets pass by survivorship, super with a valid binding nomination or reversionary pension bypasses the estate, and small balances may be released on a death certificate alone. Solely-owned real estate and larger share or bank holdings almost always require a formal grant.
When someone dies and you're named as their executor, one of the first things you'll hear about is probate — and one of the first things you'll probably assume is that it's a compulsory, expensive, months-long process you have to go through no matter what. That assumption is very common, and it's often wrong. Plenty of estates can be wound up with little or no formal probate at all, while others genuinely need it, and knowing which is which can save a family real time, cost, and stress. This article is general information only, not personal or legal advice.
What is probate actually?
A grant of probate is the Supreme Court's official confirmation that a will is valid and that you, as executor, have the authority to deal with the deceased's assets; where there's no valid will, the equivalent is a grant of letters of administration (ASIC MoneySmart, https://moneysmart.gov.au/plan-for-your-retirement/wills-and-powers-of-attorney). It's a state and territory matter — each has its own Supreme Court probate registry, its own forms and fees, and its own rules — so the detail depends on where the person lived. The important thing to understand is that probate isn't a switch that has to be flipped for every death; it's a tool for dealing with certain assets, and whether you need it depends entirely on what the estate is made of.
When do you probably not need probate?
Several kinds of assets pass outside the estate, so no grant is required to deal with them. The clearest example is jointly-held assets: a home or bank account held as joint tenants passes automatically to the surviving owner by what's called survivorship, so it never becomes part of the estate and probate isn't needed to transfer it — MoneySmart notes plainly that money in a joint bank account transfers to the surviving holder (ASIC MoneySmart, https://moneysmart.gov.au/family-and-relationships/losing-your-partner). It's worth noting the contrast with assets held as tenants in common, where each owner has a distinct share that does pass through the estate.
Superannuation is another common example: because super doesn't automatically form part of your estate and your will doesn't cover it, a valid binding death-benefit nomination (or a reversionary pension) directs the money to the nominated person and bypasses the estate entirely (ASIC MoneySmart, https://moneysmart.gov.au/how-super-works/who-gets-your-super-if-you-die). Life insurance with a named beneficiary is paid straight to that beneficiary in the same way, and assets held in a family trust or company aren't the deceased's personal estate assets at all, so they're dealt with under the trust deed or company arrangements rather than through probate. Finally, even for solely-held assets there are small estates: banks, super funds, and other institutions each set their own threshold below which they'll release funds to the executor on sight of the death certificate, the will, and a signed indemnity, without requiring a formal grant. Those thresholds vary considerably from institution to institution — commonly somewhere in the tens of thousands of dollars, but there's no single national figure, so confirm the limit with the specific bank or fund — which means a modest bank balance can sometimes be released with no probate at all.
When do you probably need probate?
On the other side, some assets almost always require a grant. The clearest is real estate held solely in the deceased's name: to transfer it to a beneficiary or sell it, you'll generally need a grant of probate. Larger holdings with banks or share registries frequently require one too, and any asset-holder is entitled to insist on a grant before releasing funds, to protect itself from the risk of paying the wrong person.
Is the reality that most estates are a mix?
In practice, many estates are a combination. A couple's home held as joint tenants passes by survivorship with no probate; the deceased's super with a binding nomination is paid directly with no probate; but a solely-owned investment property needs a grant. In that situation the executor applies for probate for the part that needs it and deals with the rest directly. So the useful question isn't really "do we need probate?" — it's "which of these assets needs it?" Sort the estate into what's jointly held, what's directly nominated, and what's owned solely in the deceased's name, and the answer usually becomes clear.
What are a few important caveats?
No probate doesn't mean no work: even where a grant isn't required, you as executor still have to identify the assets, pay any debts, and distribute the estate correctly, so skipping probate doesn't skip your responsibilities. It's also worth understanding that the structures which avoid probate also bypass your will — joint tenancy and directly-nominated super pass outside the estate, which is convenient, but it also means those assets are not controlled by the will, and that can be exactly what you want or can quietly override your intended distribution (our companion pieces on what estate planning covers and on death-benefit nominations go into this). And because probate is a state and territory matter, the thresholds and the precise circumstances in which a grant is required differ across the country.
What do the worked examples show?
These show the two ends of the range. They are illustrative only — not personal or legal advice, and probate is governed by state and territory law.
Norma, 74, has been widowed; she is the executor of her late husband Frank's estate, and everything they owned was simple and shared — the family home held as joint tenants, a joint everyday bank account, and Frank's super, which carried a valid binding nomination in Norma's favour. On these facts Norma may well not need probate at all: the home and the joint account pass to her automatically by survivorship, outside the estate, and the super is paid to her directly under the binding nomination rather than through the will (ASIC MoneySmart, https://moneysmart.gov.au/family-and-relationships/losing-your-partner; https://moneysmart.gov.au/how-super-works/who-gets-your-super-if-you-die). On these facts it is generally rational for Norma to first ask each institution whether it will release or transfer the asset on the death certificate and her identification before assuming she must apply for a grant — a small, simple estate like this can often be wound up without probate and without a solicitor.
David, 68, is the executor for his late mother, whose estate includes an investment unit held solely in her name, a share portfolio, and a term deposit above the bank's small-estate threshold. On these facts probate is almost certainly required: transferring or selling a solely-owned property needs a grant, and the share registry and bank are each entitled to insist on one before acting, to be sure they're dealing with the right person. On these facts it is generally rational for David to get a solicitor experienced in estate administration to confirm early that a grant is needed and to lodge the application, rather than assuming either way — the sooner that one question is answered, the less time and cost the family loses. Real property in a sole name is the classic trigger for probate.
Sources
- ASIC MoneySmart — Losing your partner
- ASIC MoneySmart — Who gets your super if you die
- ASIC MoneySmart — Wills and powers of attorney
Key takeaways
- Probate is a Supreme Court grant confirming a will's validity and the executor's authority — it's a tool for dealing with certain assets, not a mandatory step for every death.
- Jointly-held assets (property or bank accounts held as joint tenants) pass automatically to the survivor by survivorship and never form part of the estate, so no probate is needed to transfer them.
- Super with a valid binding death-benefit nomination or reversionary pension bypasses the estate and the will entirely, going directly to the nominated person.
- Small balances are often released by banks and super funds on a death certificate and signed indemnity alone, though the threshold for this varies by institution with no single national figure.
- Real estate held solely in the deceased's name almost always requires a grant of probate to transfer or sell, and many estates are a mix — some assets need it, others don't.
Frequently asked questions
Is probate always required when someone dies?
No. Whether probate is needed depends on what the estate is made of. Jointly-held assets, superannuation with a valid binding nomination, and small balances below an institution's threshold can often be dealt with without a formal grant.
Does a jointly-owned home need probate?
If it's held as joint tenants, no — it passes automatically to the surviving owner by survivorship and never becomes part of the estate. Property held as tenants in common is different, since each owner's distinct share does pass through the estate and may need probate.
Does superannuation go through probate?
Generally no. Super doesn't automatically form part of the estate, and a valid binding death-benefit nomination or reversionary pension directs the money straight to the nominated person, bypassing both the estate and probate.
What kind of asset almost always needs probate?
Real estate held solely in the deceased's name is the clearest example — transferring or selling it generally requires a grant of probate. Larger share portfolios and bank balances above an institution's small-estate threshold often need one too.