When Is Probate Legally Required in NSW?

We are often asked, “When is probate required in NSW?” and “Do all wills go to probate?”

Probate is usually required to allow certain assets to be collected and distributed to beneficiaries under the terms of the deceased’s will. 

Probate is usually required in NSW where:

• The deceased held real estate (known as real property) 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. 

Whether probate is required will depend on the asset type, ownership structure, and the policy of the specific asset holder. An experienced probate lawyer can assist with advising on probate laws and help navigate NSW probate requirements and probate thresholds in NSW. 

Why Courts Require Probate for Asset Transfers

Many people wonder why courts require probate, and they are often interested to learn that it is not the Courts who require probate for asset transfers, but rather, the particular asset holder and their requirements or policies. It is, however, the grant of probate through which the executor obtains the legal authority to deal with the deceased’s assets.

In the case of real estate held in NSW either solely or as Tenants in Common it is the NSW Land and Registry Services who require probate to transfer the interest in the property. 

In the case of shareholdings, the policy of the share registry will determine whether a grant of probate is required to sell or transfer the shares. 

In the case of money held in Australian bank accounts, the policy of the specific bank will determine whether the funds can be released without probate. Each bank will have its own threshold for releasing funds without a grant of probate. These thresholds generally range from $20,000 to $100,000. However, a named executor (or, where there is no will, the next of kin) should contact the specific bank for their bank account probate requirements.

Which Assets Cannot Be Accessed Without Probate?

There are assets that cannot be accessed without probate. 

Assets requiring probate in NSW usually include:

• Real estate held solely.
• Real estate held as Tenants in Common with someone else.
• High value bank accounts.
• Large share portfolios. 
• Superannuation or life insurance benefits (if the estate or the ‘Legal Personal Representative’ is the nominated beneficiary).

On the other hand, what assets require probate usually include:

• Real estate held as Joint Tenants – in these cases, the property may be transferred to the surviving Joint Tenant by lodging a Notice of Death dealing. 
• Low-value bank accounts.
• Superannuation or life insurance benefits (where the estate or the ‘Legal Personal Representative’ is not the nominated beneficiary).

What needs probate will depend on the size and nature of the asset.

Where a grant of probate is not required, accessing the assets may be as simple as providing a copy of the deceased’s death certificate and identification. 

What Happens If a Will Isn’t Probated?

What happens if a will is not probated will depend on the circumstances. 

If there is a will, but the executor believes they can collect the assets and distribute them to the beneficiaries without probate, they should contact a wills and estate lawyer to confirm this before taking any steps as an executor who interferes with the estate (known as intermeddling) may be held personally liable. In other words, there are legal risks of acting as executor without probate. If an executor interferes with the estate, they must comply with executor probate duties. 

If there is a will, but the executor neglects or refuses to apply for probate and administer the estate, a substitute executor may apply for probate. If none of the named executors apply for probate and administer the estate, some other person (usually the largest beneficiary under the will) may need to apply for Letters of Administration “with the will annexed” or where there is no will and the deceased’s died “intestate”, Letters of Administration in standard form. 

If probate is required in order to administer the estate but no executors or beneficiaries apply for probate, the estate may remain in limbo without a grant of probate or Letters of Administration from the court. 

If a will is not probated, the beneficiaries may experience delays.

Delays in probate NSW can also lead to wider disputes.