Probate in Australia — What It Is and When You Need It

Probate is a word most Australians haven't encountered until they're dealing with an estate — often under significant time pressure and emotional strain. This guide explains what it is, when you need it, and how the process works in Australia.

What is probate?

Probate is the legal process of proving that a Will is valid and granting the executor the authority to administer the estate. When probate is granted, the executor receives a document — the Grant of Probate — which most financial institutions and government agencies require before they will release assets held in the deceased's name.

In cases where there is no Will, the process is called Letters of Administration rather than probate, but it serves the same purpose: appointing someone (the administrator) with legal authority to manage the estate.

When do you need probate?

Not all estates require probate. Whether you need it depends on:

• The size and composition of the estate
• Whether the deceased held significant assets in their sole name
• The requirements of specific institutions holding assets

As a general guide, probate is typically required if:

• The estate includes real property (land or a house) held solely in the deceased's name
• The estate includes substantial bank or investment accounts (most banks require probate for balances over $50,000–$100,000)
• The estate includes shares in a company
• Any institution holding assets specifically requests it

Small estates with assets that pass automatically to a surviving joint owner (such as jointly owned property or bank accounts) often don't require probate.

Who applies for probate?

The executor named in the Will applies for probate. If there is no Will or no executor named, the next of kin can apply for Letters of Administration — usually in the order: spouse/partner, adult children, parents, siblings.

How does the process work?

1. Locate the original Will and confirm its validity. A photocopy or digital copy is not sufficient — the original must be found.
2. Obtain certified copies of the death certificate (multiple copies — you'll need them).
3. Prepare an inventory of the estate's assets and liabilities.
4. Apply to the Supreme Court of the relevant state or territory. Each state has its own probate registry and forms.
5. In most states, you must advertise the intention to apply for probate in a prescribed manner before lodging your application.
6. Once granted, receive the Grant of Probate and begin administering the estate — paying debts, transferring assets, distributing to beneficiaries.

Do you need a solicitor?

It is possible to apply for probate yourself without a solicitor — this is called a "personal application" or "DIY probate." Each state's probate registry provides forms and guidance. However, most executors find it worthwhile to engage an estate lawyer, particularly if:

• The estate is large or complex
• There is real property
• The Will is unclear or being contested
• There are multiple beneficiaries with competing interests
• You are unfamiliar with legal processes

Estate lawyers typically charge a percentage of the estate value (often 1–2%) or an hourly rate. Get a clear fee estimate before you engage.

What if there is no Will?

Dying without a Will — dying "intestate" — means the estate is distributed according to the intestacy laws of the relevant state or territory, not according to the deceased's wishes. The process is the same but the application is for Letters of Administration rather than probate. The administrator has the same powers as an executor but the distribution is governed by law, not the deceased's intentions.

This is one of the strongest reasons to have a current, valid Will in place.

Costs of probate

Probate involves court filing fees that vary by state and by the size of the estate. In NSW, for example, fees range from around $700 for smaller estates to over $6,000 for very large ones. Legal fees, if you engage a solicitor, are additional. These costs are paid from the estate — not personally by the executor.