Does Every Estate Need Probate?

When someone close to you dies and you've been named as executor, one of the first questions on your mind is likely to be: do I need probate? It is a very common question, and the honest answer is that not every estate does. Whether a grant of probate is required usually depends on what the person owned, how those assets were held and what individual institutions ask for. This guide explains the general picture in plain language, so you can feel a little more confident about the road ahead.

Please keep in mind that each Australian state and territory has its own laws, courts and forms. We use South Australia as a worked example, but you should always confirm the requirements for your situation with a solicitor or the relevant court.

What probate actually is

Probate is a court's formal recognition that a will is valid and that the executor named in it has authority to deal with the estate. Once granted, the executor can show that document to banks, land titles offices and other organisations as proof they are entitled to act.

Where there is no valid will, a similar grant called letters of administration is usually needed instead, and the court appoints an administrator rather than confirming an executor.

In South Australia, grants are made by the Supreme Court of South Australia through its Probate Registry, and applications are lodged online via the CourtSA portal. Other states have their own equivalent courts and processes.

Do I need probate? The factors that usually decide it

There is no single rule that applies to every estate, but a few factors tend to come up again and again.

Real estate in the deceased's sole name

If the person who died owned a house, unit or land in their sole name, a grant of probate is usually needed before that property can be sold or transferred. This is one of the most common reasons an estate goes through probate.

Assets held jointly

Assets held as joint tenants, such as a family home or a joint bank account, usually pass automatically to the surviving owner. They generally don't form part of the estate, so they may not, on their own, require probate. The surviving owner will usually need to provide a death certificate and complete the institution's own paperwork.

Bank accounts and shares

Banks, share registries and other financial institutions each set their own requirements for releasing funds held in a deceased person's sole name. Some may release smaller amounts without a grant; others will insist on probate. Because these rules vary and change, it is worth contacting each institution directly to ask what they need.

Superannuation and life insurance

Superannuation and life insurance are often paid according to a nomination and may sit outside the estate. If there is a valid binding nomination, the fund may pay the nominated beneficiary directly. If there isn't, or the money is paid to the estate, probate may become relevant. Each fund has its own process.

The overall complexity of the estate

Estates involving a family trust, a business, overseas assets or a potential family dispute almost always benefit from early legal advice, regardless of whether probate is strictly required.

A simple way to think about it

It can help to sort the person's assets into three groups:

• Passes directly to someone else – jointly held assets, and super or insurance with a valid nomination.
• Might be released without a grant – some accounts, depending on the institution's own policy.
• Usually needs a grant – real estate in the deceased's sole name, and assets where the institution requires probate.

If anything falls into the third group, probate is likely to be part of the process. A solicitor can confirm this once they've seen the full list. That is why a clear inventory of assets is so valuable, and why our probate preparation page focuses so much on gathering the right information first.

What the probate process generally involves

If probate is needed, the broad steps usually look something like this, though details differ by state:

1. Locate the original will and obtain the death certificate.
2. Identify and list all assets and liabilities, including how each is held.
3. Publish a notice of intended application, which usually must be done before applying.
4. Prepare and lodge the application with the court, along with supporting documents.
5. Once the grant is issued, collect assets, pay debts and distribute the estate according to the will.

Some executors choose to manage simpler applications themselves, which is sometimes called DIY probate in Australia. That can work for straightforward estates, but a solicitor is recommended for anything complex, and particularly where property, trusts or disagreements are involved. For a fuller list of what to gather, see our probate checklist for Australia.

What executors can do while they wait

Even before you know for certain whether probate is required, there is plenty you can do to help things move smoothly:

• Collect several certified copies of the death certificate.
• Secure the person's home, car and valuables.
• Make a list of every bank, super fund, insurer and creditor you know of.
• Redirect mail so that statements and bills reach you.
• Keep a simple record of every call, letter and expense.

The more organised the information, the easier it is for the estate's solicitor to advise you. If you are new to the role, our article on how to prepare your executor gives a helpful overview of what executors are typically asked to find.

Support for South Australian families

For families in Adelaide and across South Australia, our Estate Administration Support service helps after a death by gathering every document into a probate-ready pack for the estate's solicitor. We don't provide legal advice or lodge applications; our role is organising and preparing information so the legal work can proceed more smoothly. You can also read our guide to deceased estates in South Australia.

If you are planning ahead rather than dealing with a recent loss, our Estate Readiness Consultation is available nationally by telehealth and helps you put your information in order so your own executor has less to search for.

Where to from here

So, do I need probate? For many estates the answer is yes, particularly where property is held in one person's name, but for others it may not be required at all. The best next step is to list what the person owned and how it was held, then speak with a solicitor who can confirm what applies.

If you'd like help getting organised, please reach out to us. Care & Legacy Advisors are happy to go through the process alongside you.