What Is Probate and When Is It Usually Required?

Probate is the process through which the executor obtains the formal power to act as executor and administer the deceased’s estate. Probate grants legal authority for executors to manage the estate. 

We often get asked, “do I need probate in NSW?”

Probate will usually be required where:

• The deceased held real estate solely or as tenants in common with someone else. 
• The deceased holds significant assets. 
• The deceased held a large amount of money in a bank, and the bank requires a grant of probate before releasing the money. 
• The deceased held a superannuation or life insurance policy payable to the “Legal Personal Representative”. 
• There is a dispute over the will or the executor. 

On the other hand, assets that don’t need probate usually include:

• Real estate is held only as Joint Tenants.
• Small estates.
• Cash in a jointly held account. 
• Policies/accounts naming beneficiaries.

Whether probate is required in NSW depends on many factors, including the size and nature of the estate and also NSW probate requirements. There is no probate threshold in NSW. 

However, it is important to note that a grant of probate (or where there is no will and the person died intestate, a grant of Letters of Administration) can offer the appointed executor or administrator significant protections against personal liability. Therefore, we recommend anyone considering administering an estate without a grant of probate to seek legal advice before they intermeddle with the estate, regardless of the size of the estate. 

Small Estates That Don’t Require Probate in NSW

Many small estates can avoid probate, depending on the asset value and the policies of the institutions involved. 

Typical characteristics of small estates include:

• No real estate.
• Personal items only (furniture, jewellery, car).
• Small amounts of cash in bank accounts. 

These characteristics may result in a probate-free estate and probate-free asset transfer. 

The executor (or, where there is no will, the next of kin) should contact the bank to confirm the specific bank’s policy. Each bank will have its own bank account limits for probate in NSW. 

When administering small estates, no probate may be required. 

Jointly Owned Assets That Pass Automatically

Property held jointly or as Joint Tenants can pass to the surviving joint owner without the need for probate. 

Common jointly owned assets include:

• Joint bank accounts.
• Real estate owned as Joint Tenants. 
• Joint investment accounts. 

Where real estate is held as Joint Tenants, a Notice of Death can be filed with the NSW Land and Registry Services to transfer title for jointly owned real estate. The transfer of property owned as a joint tenancy in NSW does not require probate.

Where bank accounts are jointly held, the bank account can be transferred solely into the name of the joint holder by producing a death certificate and identification to the bank. 

If all assets are held jointly, this will allow for probate-free asset transfers.

However, if any assets are held solely or as Tenants in Common, probate will usually be required to transmit the property. 

Superannuation and Life Insurance Paid Directly to Beneficiaries

Superannuation is money held in trust for a member’s retirement. However, a member can usually nominate beneficiaries to receive the benefit proceeds in the event of their death. This is done by completing a form known as a binding death benefit nomination. 

A person who has a life insurance policy will usually have the option to nominate a life insurance beneficiary. 

If the member nominates valid beneficiaries (such as spouse or children), the funds may be paid to the beneficiaries without the need for probate. 

However, if the member nominated the “Legal Personal Representative” as the beneficiary or if the superannuation fund trustee determines to pay the proceeds to the “Legal Personal Representative”, the executor (or if there is no will, the next of kin) may need to obtain a grant of probate or a grant of Letters of Administration before the superannuation fund will release the funds to them. 

The superannuation, probate and life insurance probate requirements will depend on the nominated beneficiaries and the superannuation fund or insurer’s policy. 

Bank Accounts Below the NSW Probate Threshold

Each bank has its own threshold for releasing funds without probate.

The probate threshold typically ranges from $15,000 to $100,000. 

If the funds can be accessed without a grant or probate, the named executor (or if there is no will, the next of kin) may be able to access the funds by providing the death certificate, will, and identification. 

Amounts exceeding $100,000 usually require probate for release. 

The executor (or, where there is no will, the next of kin) should contact the bank directly to confirm the specific bank’s policy regarding estate access without probate. Each bank will have its own bank account probate limit in NSW.

Transferring Property Without Probate in NSW

In NSW, real estate may be held as Joint Tenants or Tenants in Common. 

The method of real estate ownership will determine whether probate is required. 

Property held as Joint Tenants can be transferred by lodging a Notice of Death with the NSW Land Registry Services. The surviving joint tenant of the joint tenancy title in NSW can achieve property transfer without probate. 

Property held solely or as Tenants in Common will require probate and a transmission application to transfer the property to the beneficiary or beneficiaries. 

Even with a will, property transfer is not automatic unless joint tenancy exists.

Need Legal Advice on Probate in NSW? Contact Us Today!

If you have been named executor in a will or require assistance with probate requirements in NSW, call Empower Wills and Estate Lawyers today on 1300 414 844 to speak with a NSW probate lawyer. 

Empower Wills and Estate Lawyers are estate lawyers experienced in probate administration and can help confirm whether probate is required, help with a probate application, or help to administer an estate including small estates, or more information on assets that don’t need probate, contact us now to obtain legal advice on probate in NSW.

Liability limited by a scheme approved under Professional Standards Legislation.

Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.