When Is Probate Required in NSW

NSW law does not require probate in every case. A grant is usually needed for real estate in the deceased’s sole name or held as tenants in common, and for larger bank balances. Jointly held assets pass to the survivor, and superannuation is usually paid by the fund outside the estate.

On this page

• Introduction
• When Is Probate Required in NSW?
• Is Probate Required to Access Bank Accounts?
• Is Probate Required to Transfer or Sell Property?
• When Can Assets Be Released Without Probate?
• Does Jointly Owned Property Require Probate?
• Does Superannuation Form Part of an Estate Requiring Probate?
• When Do Banks and Other Asset Holders Require Probate?
• Do Small Estates Always Need Probate in NSW?
• Does Probate Apply to Assets Held Outside NSW?
• Check Before You Apply

Introduction

Executors are often told they need probate before they have checked whether they do. Sometimes the estate cannot move without it. Other times, the assets pass or can be released without a grant at all, and the application costs time and money the estate did not need to spend.

This guide explains when probate is required in NSW, how banks and other asset holders decide, and which assets sit outside the estate altogether. It also covers when applying makes sense even where it is not strictly required.

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When Is Probate Required in NSW?

There is no law in NSW that requires probate in every case. The Supreme Court confirms there is no statutory requirement to obtain a grant, and that the need depends on the type, size, and value of the assets located in NSW. Probate is required when an asset holder will not release or transfer an asset without it.

A grant is almost always needed where the deceased:

• Owned real estate in their sole name
• Owned real estate as tenants in common with someone else
• Held bank accounts, shares, or investments in their sole name above the amount the institution will release informally
• Left assets where a dispute is likely, and the executor needs the protection a grant provides

The Court will not make a grant if there are no assets in NSW to administer. If the deceased died without a will, the equivalent grant is letters of administration, which our guide on how probate without a will works in NSW explains.

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Is Probate Required to Access Bank Accounts?

It depends on the bank and the balance. Accounts held jointly with a surviving account holder usually pass to the survivor. Accounts in the deceased’s sole name are frozen until the bank is satisfied it is releasing the funds to the right person.

Many banks will release modest balances without a grant. They usually ask for the original death certificate, a copy of the will, and a signed declaration of entitlement or an indemnity in the bank’s favour. The indemnity protects the bank if someone else later claims the money. Above the bank’s own limit, it will ask for a grant.

Once the grant is made, the bank can pay the executor with confidence. Section 91 of the Probate and Administration Act 1898 protects a person who makes payments on the strength of a grant of probate. That protection is why most institutions insist on one for larger amounts.

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Is Probate Required to Transfer or Sell Property?

Usually, yes. If the deceased owned real estate in their sole name, or held a share as a tenant in common, the executor needs a grant to deal with it. The Supreme Court is clear on this point in its fact sheet on applying for probate.

Selling before the grant creates problems. The Court will not expedite a probate application where an executor has already sold real estate without a grant. If the deceased signed a contract to sell property before they died and settlement is approaching, the executor can ask the Court to expedite the application once the 14-day notice period under Section 42(2)(b) of the Probate and Administration Act 1898 has passed.

After the grant, the executor lodges the relevant documents with NSW Land Registry Services to record their interest on the title. The property can then be sold or transferred to the beneficiaries under the will.

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When Can Assets Be Released Without Probate?

Assets can be released without a grant where:

• they were held as joint tenants with someone who survived the deceased,
• the balance is below the asset holder’s informal release limit,
• the asset holder accepts a death certificate and a signed declaration or indemnity, or
• the asset passes under a nomination, such as superannuation or life insurance paid directly to a nominated beneficiary

The Supreme Court suggests this approach particularly where the claimant is the surviving spouse or de facto partner, or the sole remaining next of kin. Each asset holder applies its own criteria, so ask each one in writing before deciding whether to apply for a grant.

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Does Jointly Owned Property Require Probate?

Property held as joint tenants does not require probate. When one joint tenant dies, their interest passes automatically to the surviving joint tenant. It does not form part of the estate and is not distributed under the will.

The survivor still needs to update the title. That involves lodging the relevant documents and the death certificate with NSW Land Registry Services. If you are unsure whether land was held as joint tenants or tenants in common, you can check the title through NSW Land Registry Services.

Joint tenancy has one important NSW exception. Under Part 3.3 of the Succession Act 2006, the Court can designate property outside the estate as notional estate for a family provision claim. Section 76 treats a failure to sever a joint tenancy as a relevant property transaction. Section 80 allows the Court to designate that property if the transaction took effect on death. In other words, a jointly held home can still be drawn into a claim, even though it never passed through the estate.

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Does Superannuation Form Part of an Estate Requiring Probate?

Usually not. Superannuation is held on trust by the fund, and the fund pays the death benefit under its own rules and superannuation law. As the Australian Taxation Office explains, a binding nomination can direct the benefit to one or more dependants or to the legal personal representative, who is the executor of the estate.

If there is no nomination, or the nomination is non-binding, the trustee decides which dependants to pay. The trustee can also pay the benefit to the executor for distribution under the will. Only in that case does super become part of the estate.

Some super trustees still ask to see a grant before they decide who receives the benefit, even where the money will not pass through the estate. Life insurance follows similar rules, depending on the terms of the policy. Like joint tenancy, super paid directly to a nominee can still be designated as notional estate under Section 80 of the Succession Act 2006 in a family provision claim.

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When Do Banks and Other Asset Holders Require Probate?

People often ask whether banks require probate to release funds in Australia. The answer is that each institution sets its own policy, and those policies vary. No NSW law fixes a dollar threshold.

In my experience, asset holders ask for a grant when:

• the amount exceeds their internal release limit,
• more than one person claims the asset, or a dispute is likely,
• the documents are unclear, such as a copy will or an informal will, or
• the asset is real estate, a share portfolio, or a retirement village bond

When you do apply, the Court requires an Inventory of Property (UCPR Form 117). This answers the common question about what assets need to be declared for probate. The inventory lists the deceased’s assets and liabilities as at the date of death. It includes

• real estate,
• bank accounts,
• shares,
• vehicles, and
• other property that forms part of the estate.

Assets that passed outside the estate, such as a joint tenancy, are not estate assets. The sworn gross value of the estate also determines the Court’s filing fee, which our guide on how much a grant of probate costs in NSW sets out.

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Do Small Estates Always Need Probate in NSW?

No. A small estate may need no grant at all, particularly if there is no real estate and each bank will release its balance informally. The Supreme Court charges no filing fee for estates with a gross value of less than $100,000, which reduces the cost where a grant is needed.

Probate can still be the safer choice for a small estate. A grant

• gives the executor clear authority,
• protects institutions that pay out, and
• allows the executor to rely on the distribution protections in Section 93 of the Succession Act 2006.

Those protections apply where the executor

• waits at least six months after death,
• publishes a notice of intended distribution with a period of at least 30 days, and
• has no notice of a claim.

If a family member is likely to challenge the distribution, applying for probate is inexpensive insurance.

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Does Probate Apply to Assets Held Outside NSW?

An NSW grant only covers assets located in NSW. If the deceased owned property in another state or overseas, a separate grant may be needed in that place. Each Australian state and territory has its own Supreme Court and its own rules.

In many cases, the original grant can be resealed instead. Section 107 of the Probate and Administration Act 1898 gives a grant resealed in NSW the same force as an NSW grant. That allows an executor appointed interstate or in certain countries to deal with NSW assets without a fresh application. Legal Aid NSW explains how to apply for a reseal, and the reverse process applies when an NSW grant needs to be recognised elsewhere.

If the deceased had no assets in NSW at all, the Supreme Court of NSW will not make a grant.

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Check Before You Apply

The right answer depends on what the deceased owned and how they owned it. An hour spent confirming which assets need a grant can save the estate a filing fee, weeks of processing time, and legal costs it never needed to incur. An hour missed can leave an executor exposed if they release assets informally and a claim follows.

Buckley Lawyers reviews the estate with you, contacts the asset holders, and tells you whether probate is required before any application is made. If it is, we handle the grant from start to finish. See our grant of probate page or read whether you need a lawyer for probate.

Contact us today to schedule a consultation.

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