Many Chinese-Australian families share a common misconception: once a valid will has been made, after the person dies the beneficiaries can simply take the will to the bank or land registry to transfer assets or withdraw funds. Under the Australian legal system, however, a will merely records the deceased person’s wishes for distribution; it does not automatically confer legal authority to deal with the assets.
Banks, land registries, brokers and superannuation funds will not release or transfer assets solely on production of an original will. The will must first go through Probate in the Supreme Court so that the court can confirm its validity and formally authorise the executor to administer the entire estate. Only then will the relevant institutions process the transactions.
Put simply, the difference is:
- Will: a document recording the deceased person’s wishes for distributing the estate
- Probate: the court’s official grant of authority, without which the executor has no lawful power to deal with the estate
Without Probate, assets remain frozen even if the will is entirely genuine and valid, and the family may spend considerable time making repeated approaches to different institutions.
When Must You Apply for Probate?
Circumstances Requiring Probate
An application to the state Supreme Court will generally be required if the estate includes any of the following:
- property in the deceased person’s name that is held solely (a share held as Tenants in Common also requires Probate)
- funds in a bank account that meet the financial institution’s threshold (each bank sets its own threshold)
- shares, managed funds, investment accounts or other financial assets
- superannuation or a substantial insurance payout that forms part of the estate
Circumstances in Which Probate Can Be Bypassed
This may apply where all assets are held as Joint Tenants. For example, when one spouse dies, jointly owned real property and joint bank accounts pass automatically to the surviving joint owner. They do not form part of the deceased estate and can be transferred without going through Probate.
Note: Tenants in Common do not benefit from automatic survivorship. Probate is still required for the deceased person’s share.
The 6-Step Probate Process for an Australian Executor
The process in New South Wales is used here as a reference. Other states follow broadly similar processes, but statutory time limits and notice requirements vary.
Step 1: Obtain the Official Death Certificate
The death certificate is the starting point for the entire estate process. None of the later steps can begin without this official document. Keep the original safe and prepare several certified copies for use as needed.
Step 2: Locate the Complete Original Will and Any Amendments
The court will not accept a photocopy; the originally signed will must be filed. If there is a Codicil, its original must also be filed. If the original will has been lost, the application becomes more complex and an affidavit must explain every step taken to locate it.
Step 3: Prepare a Complete Inventory of Estate Assets and Liabilities
The executor must identify each item and prepare a complete estate inventory covering real property, bank deposits, shares, vehicles and valuable personal belongings. All debts, bills and outstanding expenses must also be recorded. The inventory is a central part of the court application and should be as complete and accurate as possible.
Step 4: Publish the Required Notice of Intended Application
A notice of intention to apply for Probate must be published in accordance with the law of the relevant state. This statutory notice creates a prescribed period in which potential creditors and interested parties who object can come forward, allowing creditors to submit claims and reducing legal risk after the estate is distributed.
Step 5: File the Complete Probate Application with the State Supreme Court
The executor compiles all documents and files the application with the state Supreme Court online or in person. The complete application includes the original will, death certificate, executor’s affidavit, inventory of assets and liabilities, evidence of the notice and the court’s prescribed application forms. The applicable filing fee must also be paid.
Step 6: Await the Court’s Decision and Obtain the Grant of Probate
The court reviews the documents and, if it has questions, will issue a requisition for further information to which the executor must respond on time. The review period depends on the complexity of the estate and generally ranges from several weeks to several months. The executor gains lawful authority to administer the estate only after receiving the court’s Grant of Probate.
Statutory Time Limit to Note in New South Wales
New South Wales law requires the executor to file the Probate application with the Supreme Court within 6 months after the deceased person’s death. An application filed after 6 months will not automatically be rejected, but the executor must provide the court with a full written explanation of the reasonable cause for delay in an affidavit. A failure to provide a reasonable explanation may impede the application.
Other states have different statutory time limits. Where assets are held across states, the requirements of each relevant state must be followed.
Administering the Estate After Probate Is Granted
Obtaining the court’s grant does not mean that distribution of the estate is complete. The executor must still:
- present the Probate grant to banks, land registries and investment institutions to release assets and transfer title;
- first pay all debts, taxes, fees and funeral expenses owed by the estate;
- after the statutory period for creditors’ claims has ended, distribute the remaining estate to each beneficiary strictly in accordance with the terms of the will.
The executor has legal responsibilities. If the estate is distributed before its debts have been paid, the executor may face personal liability for those debts.
Finally: Making a Will Is Only the First Step
Many people carefully prepare and sign a will but do not tell their families about the Probate process that follows. A valid will is only the first step in estate planning. If the family does not understand the legal Probate procedure, a loved one’s death can be followed by lengthy delays, repeated visits to institutions, greater demands on the family’s time and unnecessary anxiety.
If you are dealing with an estate in Australia and are unsure how to proceed, you are welcome to leave us a message for advice.
Disclaimer: This information is general in nature and does not constitute legal advice for any individual matter. Laws vary between states, and you should obtain advice tailored to your circumstances from a practising legal professional.
