When someone passes away, their estate often needs to go through a legal process to validate their will and authorise the distribution of assets. This process, known as probate, is a fundamental part of finalising a will and estate plan in Australia. Probate serves as the official recognition that a will is valid and gives the executor legal authority to administer the deceased’s estate according to their wishes. While the process is broadly similar across Australia, each state and territory has its own specific requirements, forms, and procedures that must be followed.
Key Takeaways
- Probate is the legal process that validates a will and authorises executors to administer the estate
- Not all estates require probate – it depends on the types of assets, their value, and how they’re owned
- The probate process varies across Australian states and territories, with different courts, forms, and fees
- Many assets can bypass probate through proper estate planning, including joint ownership and beneficiary nominations
- Professional advice is recommended for complex estates or when the executor is unfamiliar with legal requirements
What is Probate?
Definition
Probate is the legal process which a court officially recognises a will as valid and gives the executor authority to administer the deceased person’s estate. The ‘grant of probate’ is the formal document issued by the court that confirms the executor’s authority to collect and distribute assets according to the will’s instructions.
Legal Role of Probate
A grant of probate serves as proof that the executor has the legal right to deal with the deceased person’s assets. Banks, share registries, and other institutions typically require this document before allowing access to substantial assets. It protects these organisations from liability by ensuring they’re dealing with the properly authorised person.
Who Applies for Probate?
The executor named in the will applies for probate. If there’s no will (intestacy) or no named executor is willing to act, an interested party can apply for ‘letters of administration’ instead. This person, called the administrator, generally follows similar procedures but distributes assets according to intestacy laws rather than a will.
When is Probate Necessary?
Types of Assets That Commonly Require Probate
Probate is typically required when the deceased owned:
- Real property (houses, land) in their sole name
- Bank accounts with significant balances (thresholds vary by institution)
- Shares and investments in the deceased’s name
- Certain superannuation benefits not subject to binding nominations
- Valuable personal property like vehicles, artwork, or jewellery
Situations That Make Probate Likely
Probate becomes necessary when assets are held solely in the deceased’s name and exceed certain value thresholds. Financial institutions and government agencies generally require formal proof of authority before transferring substantial assets. The complexity of the estate and potential for disputes also influence whether probate is needed.
When Probate May Not Be Needed
Probate might be unnecessary for:
Assets held as joint tenants (these pass automatically to the surviving owner)
Superannuation with valid binding death benefit nominations
Life insurance policies with nominated beneficiaries
Small estates where banks and institutions are willing to release funds informally
How the Probate Process Works in Australia
Typical Step-by-Step Process
The standard probate process follows these steps:
- Obtain the death certificate
- Locate the original will
- Identify and value all assets and liabilities
- Prepare and file the probate application with supporting documents
- Advertise the intention to apply for probate (required in some states)
- Receive the grant of probate from the court
- Use the grant to collect assets, pay debts and taxes
- Distribute the remaining estate to beneficiaries
State and Territory Variations
Each Australian jurisdiction manages probate through its Supreme Court or dedicated registry:
NSW, VIC, QLD, WA, SA, TAS: Supreme Court Probate Division
ACT: Supreme Court Registry
NT: Supreme Court Probate Office
Forms, fees, and requirements vary by location. For example, some states require advertisements before filing, while others have mandatory waiting periods.
Expected Timeframes
Simple probate applications typically take 4-8 weeks from filing to receive the grant. The entire estate administration process, however, commonly takes 6-12 months depending on complexity. Factors that extend timelines include contested wills, complex assets, tax issues, and beneficiary disputes.
“Understanding probate timeframes helps executors manage beneficiary expectations. While the court process might take weeks, finalising an entire estate often takes months due to the meticulous work required to properly identify, secure and distribute assets.” – Tonkin Legal
Roles and Responsibilities
Executor Duties
An executor’s responsibilities include:
Arranging the funeral
Identifying and securing all assets
Paying debts, taxes and administration expenses
Communicating with beneficiaries
Keeping detailed records
Distributing assets according to the will
Administrator Duties When No Valid Will
Administrators perform similar duties to executors but must distribute assets according to intestacy laws, which follow a prescribed order of eligible relatives. They may need to provide a surety bond in some states to protect beneficiaries from potential mismanagement.
Professionals Who Can Help
Various professionals commonly assist with probate:
Solicitors: Navigate legal requirements, prepare court documents, advise on complex situations
Public Trustees: Act as executor/administrator if appointed or when no one else is available
Accountants: Handle tax returns, asset valuations, and financial advice
Costs and Fees
Court and Registry Fees
Filing fees for probate applications vary by state and are typically calculated based on the estate’s value. These range from a few hundred to several thousand dollars. Some states also charge for additional services like urgent applications or document copies.
Professional Fees
Legal fees for probate work may be charged as flat fees for straightforward matters or hourly rates for complex estates. Executors may be entitled to commission for their work, especially for large or time-consuming estates, though many family members waive this right.
Other Costs
Additional expenses typically include:
Death certificate copies
Asset valuations
Advertising notices
Travel expenses
Property maintenance during administration
Common Problems and Delays
Missing or Disputed Wills
When a will cannot be located or its validity is challenged, the probate process becomes more complex. Challenges might be based on claims the deceased lacked capacity, was unduly influenced, or that the document wasn’t properly executed. These disputes often require separate court proceedings before probate can proceed.
Complex Assets
Certain assets create complications:
Business interests requiring valuation and possible restructuring
Foreign assets potentially requiring additional probate processes overseas
Trust structures with ongoing management needs
Digital assets that may be difficult to access or value
Creditor Claims and Tax Issues
Outstanding debts, including tax liabilities, must be settled before distribution to beneficiaries. The Australian Taxation Office may require final tax returns and clearances. Executors should advertise for creditors and allow sufficient time for claims before distributing assets to avoid personal liability.
Alternatives and Ways to Limit Probate
Small Estate Procedures and Informal Administration
Most Australian financial institutions have simplified procedures for releasing funds below certain thresholds (typically $15,000-$50,000) without requiring probate. These often involve statutory declarations and indemnities rather than court applications.
Asset Structuring to Avoid Probate
Strategic ownership arrangements can help assets bypass probate:
Joint tenancy ownership passes property automatically to surviving owners
Superannuation with binding death benefit nominations
Assets held in family trusts that continue despite the settlor’s death
Direct beneficiary nominations on insurance policies
Practical Estate Planning Tips
Simple measures to streamline future probate include:
Keeping an updated, properly executed will
Maintaining a clear asset register with account details
Storing important documents where executors can find them
Discussing your wishes with executors before your passing
When to Get Legal Advice
Common Triggers to Consult a Lawyer
Professional legal advice is particularly valuable when:
The estate contains substantial assets
There are blended family arrangements
Business interests are involved
Foreign assets exist
Will contests seem likely
Tax implications are complex
What to Bring to a First Meeting
To make the initial legal consultation productive, bring:
The original will (if available)
Death certificate
List of assets and approximate values
List of beneficiaries and their contact details
Any correspondence from banks or other institutions
How to Choose the Right Adviser
When selecting a probate lawyer, look for:
Experience with estates similar to yours
Familiarity with your state’s probate process
Clear fee structures
Good communication skills
Positive client testimonials
Practical Checklist for Executors
Follow these steps when administering an estate:
1. Obtain multiple certified copies of the death certificate
2. Locate and secure the original will
3. Identify and secure all assets (change locks, collect valuables)
4. Notify relevant organisations (banks, utilities, government agencies)
5. Prepare an inventory of assets and liabilities
6. Determine if probate is necessary based on asset types and values
7. Apply for probate if required
8. Collect assets and pay liabilities once grant is received
9. Lodge final tax returns
10. Distribute remaining assets to beneficiaries
11. Keep detailed records of all transactions
12. Provide final accounting to beneficiaries
Frequently Asked Questions
How long does probate take in Australia?
The court process typically takes 4-8 weeks once filed, but the entire estate administration often takes 6-12 months.
Can beneficiaries access funds before probate?
Generally not for assets requiring probate. Small accounts or urgent expenses like funeral costs may be exceptions.
What if an executor refuses to act?
Alternate executors named in the will can step in. If none are willing, an interested party can apply to be administrator.
Does Australia have inheritance tax?
Australia has no inheritance tax, but other tax issues may arise, including capital gains tax on certain assets and income tax on estate earnings.
Conclusion
Probate is a necessary legal process that provides certainty and protection when administering a deceased estate. While it may seem complex, understanding when probate is required and following the correct procedures ensures assets are distributed according to the deceased’s wishes and legal obligations are met. For those facing complex estate situations or feeling overwhelmed by the process, seeking professional guidance can provide peace of mind and ensure compliance with all legal requirements. Tonkin Legal can provide expert assistance with all aspects of probate and estate administration, helping executors fulfil their duties efficiently while minimising stress during an already difficult time.
