Probate: when and how to apply

What is probate?

Probate is a grant from the Supreme Court of the relevant state or territory that confirms two things: the will presented is the valid last will of the deceased, and the person named as executor has legal authority to administer the estate.

It is the executor's official credentials. When you present a grant of probate to a bank, share registry, or government agency, they can release information and transfer assets without any personal liability. Without it, many institutions will not act.

The probate application is made to the Supreme Court Registry in the state or territory where the deceased person lived. The process is administrative rather than adversarial. In most cases there is no court hearing.

When do you need probate?

Not all estates require probate. The main situations where it is needed: the estate includes real property in the deceased's sole name; a financial institution requires it to release funds (typically for accounts or investments above $50,000 to $100,000, though thresholds vary); or there is a dispute about the validity of the will.

Jointly held assets generally pass automatically to the surviving owner by operation of law. They do not form part of the estate and do not trigger a probate requirement. Assets with a named beneficiary, such as a binding superannuation death benefit nomination, also pass outside the estate.

If you are not sure whether probate is required, contact the Supreme Court Registry in your state, or speak with an estate solicitor. The cost of an early consultation is modest compared to the cost of errors made later.

What happens if there is no will?

If the person died without a valid will, they died intestate. In this situation there is no executor and no will to probate. Instead, an eligible person, usually a spouse, de facto partner, or adult child, can apply to the Supreme Court for Letters of Administration.

Letters of Administration serve the same purpose as a grant of probate: they authorise the administrator to deal with the estate. The estate is then distributed according to the intestacy laws of the relevant state or territory, which set out a fixed order of priority for who inherits.

Intestacy situations are more complex and more likely to require professional legal assistance. Contact an estate solicitor early if there is no will, or if the will cannot be located.

What documents do you need to apply?

The standard probate application requires: the original will (the physical document, not a copy); the original death certificate or a certified copy; completed application forms from the Supreme Court Registry in your state; an inventory of the estate's assets and liabilities; and an affidavit sworn by the executor confirming the facts of the application.

Some states require that the original will be retained by the Registry throughout the process. If you cannot locate the original will, speak with a solicitor before proceeding. There are processes for dealing with lost or destroyed wills, but they add complexity and time.

Filing fees apply and vary by state. They are generally calculated as a percentage of the gross estate value above a certain threshold. Ask the Registry or your solicitor for a fee estimate based on your estate's approximate value before you apply.

Should you use a solicitor or apply yourself?

It is possible to apply for probate without a solicitor. Each state's Supreme Court provides self-help guides and application forms online. Victoria's guide is published at supremecourt.vic.gov.au; other states have equivalent resources through their justice department websites. For simple estates with a clear will, no disputes, and straightforward assets, a self-represented application is realistic and saves on legal costs.

For estates that involve real property, multiple beneficiaries, or any complexity at all, using an estate solicitor is generally worth the cost. Errors in the application cause delays, and a solicitor will also advise on obligations you may not be aware of, including the executor's duty to settle all estate debts before distributing assets to beneficiaries.

If you engage a solicitor, confirm they have specific experience with estate administration rather than just will-writing. Ask for a fixed-fee quote for the probate application upfront so you know exactly what you are committing to.

How long does probate take?

In most cases, probate is granted within four to eight weeks of filing a complete application. Times vary by state and by how busy the Registry is: in some states it can be faster, and during peak periods it can take longer.

Some states now offer online probate application processes that reduce both cost and processing time. Ask your solicitor or the Registry about what is available in your state before filing a paper application.

Do not wait for probate before starting other estate administration tasks. Many things can proceed in parallel: gathering documents, contacting institutions to understand their requirements, dealing with jointly held assets that pass outside the estate, and arranging insurance on estate property.

What happens once probate is granted?

Once the grant is issued, you receive an official document from the Court. You can obtain certified copies to use with different institutions. Keep the original safe and submit certified copies to banks, share registries, and government agencies.

With probate in hand, you can open an estate bank account if you have not already, begin transferring or selling assets, pay estate debts and administration costs, and ultimately distribute to beneficiaries once all liabilities are settled.

Keep a clear record of every step: what assets were held, what was sold or transferred, to whom, and when. Beneficiaries are entitled to a copy of the estate accounts, and you as executor are personally responsible for the accuracy and completeness of the administration.