Probate serves as a crucial legal stepping stone after someone passes away, validating a deceased person’s Will and permitting the Executor to handle their affairs.

Generally, banks and superannuation funds require this legal authorisation before releasing or transferring assets of significant value. In NSW, for instance, Probate is typically necessary if the deceased owned real estate solely in their name, had bank accounts exceeding approximately $50,000, substantial shareholdings over $15,000, or significant superannuation balances payable to the estate. However, not all situations demand Probate.

As an Executor, knowing whether to obtain Probate could help you avoid costly delays and personal liability for outstanding debts. In this guide, our experienced Wills & Estates lawyers explore when Probate is required and why.

What is Probate?

Probate is a legal process where the Supreme Court confirms that a deceased person’s Will is valid. It results in a court-issued document—known as a Grant of Probate—that gives the nominated Executor the authority to manage the estate.

In practical terms, this means the Executor can collect the deceased’s assets, pay any outstanding debts, and distribute what remains to the beneficiaries according to the Will.

The Probate process also involves listing all assets and liabilities to calculate the total value of the estate. This step ensures everything is properly accounted for before distribution.

Importantly, Probate protects both the beneficiaries and the Executor. Without it, an Executor who distributes assets may be held personally responsible if unexpected debts surface later.

Why banks and institutions demand a Grant of Probate

When a person passes away, banks and other financial institutions typically freeze any accounts held solely in their name. While deposits can still be made, withdrawals are restricted until the Executor provides formal documentation—usually a Grant of Probate.

This requirement is a safeguard. Probate confirms the Executor’s legal authority to manage the deceased’s estate, protecting the institution from releasing funds to the wrong person.

Financial institutions insist on Probate to minimise risks such as:

  • Forgery or fraud
  • Undiscovered newer Wills
  • Identity theft
  • Future legal disputes or claims

Each institution sets its own threshold for when Probate is required. For example, the Commonwealth Bank mandates Probate if the estate exceeds $152,899.02. Other banks may set lower limits, ranging from $1,500 to $23,000, depending on their internal policies.

While a copy of the Will might seem sufficient, most institutions require the official Grant of Probate or Letters of Administration to release significant assets. This ensures they are dealing with the legally authorised representative.

For smaller amounts below the threshold, many banks will release funds to a next of kin or close relative after an indemnity form is signed to protect the bank from future claims.

Tip: Always check with each institution directly, as their requirements can vary.

When is Probate required in NSW and the ACT?

Whether Probate is needed depends largely on the type and value of the deceased’s assets. Here’s a breakdown of common situations where Probate is typically required in NSW and the ACT.

Solely owned real estate

If the deceased owned property solely in their name, Probate is almost always required before it can be sold or transferred. This applies regardless of the property’s value, as land titles offices need formal confirmation that the Executor has the legal authority to act.

If the property was owned as tenants in common (where each owner has a defined share), Probate is still needed to transfer the deceased’s portion. In contrast, jointly owned property (with rights of survivorship) passes automatically to the surviving owner—no Probate required.

Without a Grant of Probate, real estate transactions—such as selling or transferring the property to beneficiaries—cannot proceed.

Bank accounts over a certain amount (usually $50,000)

Financial institutions implement threshold policies above which they require Probate before releasing funds. These limits can vary widely, from around $20,000 to $120,000, depending on the bank’s policies and the type of asset.

For example:

  • ANZ Bank, Commonwealth Bank, and National Australia Bank set their threshold at $76,449.51
  • Westpac Bank has a higher threshold at $114,674.27
  • Credit unions typically have lower thresholds, with many around $22,934.85

Company shares and investment portfolios

Share registries and brokers have their own Probate thresholds. For example:

  • Link Market Services, SRAA – $22,934.85
  • Computershare, Registry Services Australia – $38,224.76
  • Registry Services Australia (if no Will) – $76,449.51

With brokers, it’s often the individual shareholding value that matters.

For example, five separate stock parcels each worth $5,800 (totalling $29,000) may not require Probate if each parcel is below the institution’s limit. However, if the combined value of shares exceeds $80,000, most brokers will require a Grant of Probate before releasing or transferring assets.

Once Probate is granted, shares can be sold or transferred to beneficiaries as outlined in the Will.

When Probate is not required: Common exceptions

Despite what many people assume, Probate isn’t always necessary after someone passes away. In certain situations, assets can be transferred without going through the court process, saving time, money, and stress for grieving families.

Jointly owned assets and the rule of survivorship

Assets held as joint tenants pass automatically to the surviving owner without needing Probate. This rule of survivorship applies to jointly held real estate, bank accounts, and shares, where each party owns the whole asset rather than a separate portion.

When one joint owner dies, ownership transfers instantly to the survivor by operation of law, regardless of the Will. The Executor usually only needs to provide a death certificate to banks or registries to update ownership records.

For jointly owned property, a Notice of Death or Transmission Application must be lodged with the relevant land titles office to formally transfer the property into the surviving owner’s name. This process is commonly used by spouses inheriting the family home.

Small estates and low-value thresholds

In NSW and the ACT, no fixed dollar value automatically defines a “small estate” under the law.

However, Probate is often not required when the total value of the estate is modest and doesn’t include solely owned real estate.

As discussed above, most banks and financial institutions have their own internal thresholds for releasing funds without a Grant of Probate.

If the estate falls under these thresholds, the Executor or next of kin can typically access funds by providing:

  • A certified copy of the death certificate
  • A copy of the Will (if one is available)
  • A completed indemnity form, which protects the institution from future claims

It’s important to note that each asset holder makes their own decision about whether Probate is needed, so it’s best to contact them directly to confirm their requirements.

Binding nominations for superannuation or insurance

Superannuation and life insurance policies with valid binding beneficiary nominations bypass Probate entirely. Unlike typical assets, superannuation isn’t automatically part of a deceased’s estate.

When a valid binding nomination exists, the superannuation trustee or insurer must pay directly to the nominated beneficiaries. These nominations can be binding (legally enforceable) or non-binding (providing guidance only).

Eligible beneficiaries typically include spouses, children, financial dependents, or those in interdependency relationships with the deceased. For benefits paid to dependents, payments can be made as lump sums or income streams.

What to do if you’re still unsure about Probate

It’s common for Executors to feel unsure about whether Probate is necessary. The best way forward is a step-by-step review of the deceased’s assets and direct contact with the organisations that hold them.

1. List and value estate assets

Create a comprehensive balance sheet listing everything the deceased owned. This should include:

  • Real estate
  • Vehicles
  • Bank accounts
  • Superannuation and insurance
  • Shares and investments
  • Employment entitlements
  • Business interests
  • Personal belongings and valuables

For proper assessment, value each asset based on its worth at the “date of death” rather than its current market value. Different assets require different valuation approaches:

Cash-like assets: For bank accounts, shares, and superannuation, check statements or current share prices for accurate valuation
Non-cash assets: For vehicles, furniture, and collectibles, assign second-hand resale values by comparing similar items in the market
Real estate: Obtain an independent valuation rather than relying solely on online estimates

A formal Probate Valuation Report might be required by the Probate office in your state or territory. This report helps establish fair market value and minimises potential disputes between beneficiaries.

2. Contact asset holders for their requirements

Before applying for Probate, reach out to all organisations holding the deceased’s assets. Requirements vary significantly between banks, super funds, share registries, and insurers.

Some may release funds or transfer assets without needing a Grant of Probate—especially if the amounts involved are below their internal thresholds.

You should contact:

  • Banks and credit unions – Ask about their Probate threshold and alternative documentation they’ll accept
  • Superannuation funds – Confirm whether a binding death benefit nomination exists
  • Insurance companies – Find out what documents they require to process claims
  • Share registries or brokers – Check their thresholds and specific forms

To avoid delays or unnecessary Probate applications, prepare a list of key questions for each institution:

  • Do you require Probate for this asset?
  • What is your threshold for releasing funds or transferring ownership?
  • What alternative documents do you accept instead of Probate?
  • What is your average processing timeframe?
  • Are there any specific forms I need to complete?

Be ready to provide documents such as:

  • A certified copy of the death certificate
  • A copy of the Will (if applicable)
  • Proof of your identity and role as Executor
  • Any forms or indemnities required by the institution

Get personalised legal support with Probate in NSW and the ACT

Understanding when Probate is required can save weeks of paperwork, reduce stress during an already emotional time, and ensure you’re meeting your legal responsibilities as an Executor.

Generally, Probate is required when the person who passed away owned assets solely in their name, like a house, substantial savings, or investments. However, it’s often not necessary for jointly owned property, low-value accounts, or assets such as superannuation or insurance where a valid beneficiary is nominated.

If you’re feeling uncertain, our experienced Wills and Estate lawyers can guide you through Probate in NSW and the ACT. We’ll help you determine whether a Grant of Probate is needed based on the specific assets involved—and if it is, we’ll support you in preparing and lodging the application efficiently.

For clear, practical advice tailored to your situation, get in touch with our team today. We’re here to help you move forward with confidence.