Do you actually need it?
There is no rule requiring an executor to apply for probate. You need a grant when an institution holding an asset refuses to release it without one. So the test is practical rather than legal: ask every bank, registry and land titles office whether they will deal with you without a grant. Their answers decide it.
In practice you will usually need probate when:
- There is real estate in the deceased's sole name, or a tenants-in-common share.
- A bank holds more than its threshold. The major banks generally require a grant once the deceased's sole holdings reach around $100,000.
- A share registry or fund will not accept a small-estate indemnity instead.
- A super fund is paying a death benefit to the estate rather than to a nominated person.
You will usually not need it when:
- Everything was held as joint tenants. Property, bank accounts and other jointly held assets pass to the surviving owner by survivorship, and a death certificate is generally enough.
- Superannuation and life insurance are being paid to a nominated person, since they sit outside the estate.
- The estate is small and every institution agrees to release without a grant.
One argument for applying even when nobody has insisted: the ATO will only record you as the legal personal representative, with full access to the deceased's tax and superannuation records, once you hold a grant. If you are struggling to find assets, that access is often worth the fee on its own.
Probate, or letters of administration
- Probate is granted where there is a valid will naming a living executor who is willing to act.
- Letters of administration are granted where there is no will. The person with the strongest entitlement under the state's intestacy rules applies, usually the surviving partner, then children.
- Letters of administration with the will annexed apply where there is a will but no executor able or willing to act.
Where there is no will, who inherits is fixed by statute rather than by family agreement. The surviving partner does not always take everything, particularly where there are children from an earlier relationship. Read your state's rules before promising anyone anything.
How it works, in five steps
- Publish a notice of intention to apply. Most states require this, usually online through the court, and it starts a waiting period.
- Prepare the inventory. Every asset and liability with a value as at the date of death.
- File the application with the original will, the death certificate, the inventory and the executor's affidavit.
- Answer any requisition. The registry often comes back asking for more. It is routine; answer promptly.
- Receive the grant, then order several certified copies. Institutions keep the ones you send.
You can apply yourself in every state, and Victoria explicitly encourages self-represented applicants. A solicitor typically charges around $1,000 to $2,000 for a straightforward application on top of the court fee.
Your state or territory
Fees change, usually on 1 July. Check the current schedule on the court's own page before you budget.
| Where | Court and process | Notice period | Filing fee |
|---|---|---|---|
| VIC | Supreme Court of Victoria, through the RedCrest-Probate portal. Self-represented applications encouraged. An assisted service exists for small estates. | 15 days after publishing the notice | No fee under $250,000. Small estates service around $323 in total. |
| NSW | Supreme Court of NSW, filed through the Online Registry. Applying more than six months after the death requires an explanation of the delay. | 14 days after the online notice | Banded by estate value |
| QLD | Supreme Court of Queensland. Advertise in the Queensland Law Reporter and send a copy to the Public Trustee. | 14 days from publication, and 7 days from the Public Trustee receiving it | Flat fee, around $848 |
| WA | Supreme Court of Western Australia, with an online Probate Wizard for simpler applications. No advertising step. | None | Flat fee, around $418 |
| SA | Supreme Court of South Australia through the CourtSA portal. Electronic lodgement is mandatory. | None | Banded by estate value, from around $1,020 |
| TAS | Supreme Court of Tasmania. A notice of intention (Form 2) is required. | Set by the court | Banded by estate value, from around $549 |
| ACT | ACT Supreme Court. The Registrar grants probate on the papers, without a hearing, when uncontested. | Not less than 14 days and not more than 3 months before filing | Per the court's civil fee schedule |
| NT | Supreme Court of the Northern Territory. A notice of intended application (Form 88B) must be published. | Set by the court | Per the court's fee schedule |
Court pages: Victoria and its small estates service · New South Wales · Queensland · Western Australia · South Australia · Tasmania · ACT · Northern Territory
How long it takes
Uncontested grants commonly issue within about four weeks to three months of filing. Western Australia aims for around four weeks; South Australia expects uncomplicated grants to issue in under four weeks. Add the notice period before that, and time to gather values before that again.
A requisition adds weeks. So does a missing document, an unclear execution of the will, or an asset that turns up after the inventory was filed.
Do not distribute too early
This is where executors get personally exposed.
Every state gives eligible people (a partner, children, and in some states other dependants) a window to apply to the court for a larger share than the will gives them. If you distribute the estate before that window closes and a claim succeeds, the executor can be personally liable for the money that has already gone out.
| Where | Time limit for a family provision claim |
|---|---|
| VIC | 6 months from the grant |
| NSW | 12 months from the date of death |
| QLD | Notice to the executor within 6 months of death; claim started within 9 months of death |
| WA | 6 months from the grant |
| SA | 6 months from the grant |
| TAS | 3 months from the grant |
| ACT | 6 months from the grant |
| NT | 12 months from the grant |
Confirm the limit that applies to your estate with the court or a solicitor before you rely on it. A court can extend these periods in some circumstances.
Two more protections
- Publish a notice of intended distribution. It gives creditors a set period to come forward and protects you afterwards. In New South Wales that is done through the Online Registry and gives creditors 30 days.
- Clear the tax first. The ATO does not write off a deceased person's tax debt, and an executor who distributes with notice of an outstanding claim can be personally liable for it. Confirm with the ATO that nothing is outstanding before you pay anyone.
The executor's year
Traditionally an executor has twelve months from the death before beneficiaries can press for payment. New South Wales guidance suggests not distributing until at least six months after the death. If a cash legacy is still unpaid after twelve months, the beneficiary may be entitled to interest on it.
Do not rush. A beneficiary who is impatient is a smaller problem than a claim you have already paid out against.
If you would rather not do it yourself
- A solicitor typically charges around $1,000 to $2,000 for a straightforward grant, more where there are trusts, companies, disputes or overseas assets.
- The Public Trustee in your state will administer the whole estate. Fee models differ: South Australia charges a capital commission capped at 4.4% plus commission on income, Queensland charges by units of effort rather than a percentage, and Tasmania charges only on solely owned assets. Compare before appointing.
- You can also do part of it. Some executors apply for the grant themselves and hand the rest to a solicitor, or the reverse.