Understanding and applying for probate in Australia

When someone passes away, sorting out their estate is one of the final, and often most confusing, responsibilities for loved ones. Between legal paperwork, court requirements, and different state rules, it’s easy to feel overwhelmed. That’s where probate comes in, a process designed to validate a will and give someone the legal authority to carry out the deceased’s wishes.

To help break down how it all works, we spoke with James Ballantyne, Principal Lawyer and Accredited Specialist in Wills & Estates, who has guided countless families through the probate process. In this article, James explains what probate really means, when it’s required, and how to manage the process smoothly, whether you’re an executor, beneficiary, or simply planning ahead.

What is probate of a will?

Probate is the formal legal process that confirms a will is valid and gives the executor authority to manage the estate. Once granted by the Supreme Court, it allows the executor to collect assets, pay debts, and distribute funds according to the will.

“Where there is no will, or where there’s another legal issue with a will, the process is known as ‘Letters of Administration’. These grants give the legal personal representatives official recognition of their right to administer an estate.” - James Ballantyne

While probate is not always required, it provides legal protection for the executor and gives institutions like banks or share registries confidence that they’re releasing assets to the right person.

Ballantyne adds, “Being a formal court process, it can be helpful to engage a solicitor to assist in preparing and filing a grant; however, it’s not legally necessary to appoint a lawyer to act.”

And despite common belief, probate doesn’t mean paying death duties or inheritance tax; those no longer exist in Australia.

When is probate required?

Whether probate is required depends on where the person lived, what assets they owned, and how those assets were held.

Probate may be necessary in circumstances where:

• The deceased owned real estate solely in their name or as tenants in common.
• They held bank accounts, shares, or managed investments above certain thresholds.
• There’s no surviving joint owner or account holder.
• Financial institutions or registries request a formal grant before releasing funds.
• The estate is complex, or there are disputes among beneficiaries.

“Different jurisdictions have different requirements about when a grant might be required,” says Ballantyne. “In New South Wales, for example, it’s necessary to obtain a grant to transmit real property, but in Queensland, smaller estates may be administered without the formality of a grant.”

Probate may be avoided in circumstances where:

• Assets are jointly owned with a spouse or partner (joint tenancy).
• The estate is low-value, and institutions agree to release funds without formal probate.
• Life insurance or superannuation policies have named beneficiaries.
• All property passes automatically to a surviving joint owner.

“Where all property of a deceased person is jointly held, it may not be necessary at all to obtain a grant,” Ballantyne notes. “But it’s always worth getting legal advice before assuming it can be skipped.”

Step-by-step guide to applying for probate in Australia

The process of applying for probate can vary by state or territory, but the overall structure is similar nationwide.

“The process to obtain a grant is a formal court process, and there are specific steps that have to be taken in a specific order,” says Ballantyne.

“Common mistakes include failing to advertise correctly, forgetting to notify the Public Trustee, or not addressing physical issues with the will - like staple holes or marks - in the supporting affidavits.”

Step 1: Confirm if probate is required

Before applying, confirm whether the estate actually requires a grant. Small estates or those made up solely of joint assets may not.

Step 2: Locate the will and death certificate

The original will and a certified copy of the death certificate are essential. You’ll also need to confirm that no later will exists.

Step 3: Identify the executor or administrator

The executor named in the will is responsible for applying for probate. If there’s no will, a family member (usually the next of kin) applies for letters of administration.

Step 4: Publish a notice of intention to apply

Each state requires an official public notice of intention to apply for probate, often online or through a legal publication.

“Depending on the jurisdiction, an appropriate notice must be advertised. For example, in Queensland, it must appear in the Queensland Law Reporter, and be provided to institutions such as the Public Trustee,” says Ballantyne.

Step 5: Wait the required period

After the notice is published, there’s a mandatory waiting period (typically 14 days) before you can file the application.

Step 6: Prepare the probate application

You’ll need to prepare formal affidavits confirming the will’s validity and attach evidence such as the death certificate, original will, and a list of assets and liabilities.

Step 7: Submit the application to the court

Applications are submitted to the Supreme Court in the relevant state or territory. Some courts now allow online submission; others still require physical filing.

Step 8: Respond to any court queries

If the registry identifies missing information or inconsistencies, it’ll raise a requisition, a request for further details or corrections.

Step 9: Receive the grant of probate or letters of administration

Once approved, the court issues the official grant, giving the executor legal authority to administer the estate.

Step 10: Manage and distribute the estate

The executor can then collect assets, pay debts, and distribute funds according to the will.

Probate application by state/territory

While the general steps for probate are similar across Australia, each state and territory has its own process, filing fees, and timelines. Some courts allow online lodgment and digital publication of notices, while others still require physical forms and original documents to be lodged in person.

The most accurate and up-to-date details (including current filing costs, processing times, and notice requirements) are always published by each state’s Supreme Court. You can check the relevant information directly through the links below:

• Supreme Court of New South Wales - Probate Division
• Supreme Court of Queensland - Probate Registry
• Supreme Court of Victoria - Probate Office
• Supreme Court of South Australia - Probate Information
• Supreme Court of Western Australia - Probate Information 
• Supreme Court of Tasmania - Probate Registry
• Supreme Court of the Australian Capital Territory - Probate Information
• Supreme Court of the Northern Territory - Probate Information

Because requirements differ, it’s a good idea to double-check your local rules before starting the application. A solicitor experienced in estate law can also help interpret the state-specific criteria and ensure your documentation is filed correctly the first time.

How probate works with a will vs without a will

Having a valid will simplifies probate considerably. The executor named in the document can apply directly, and once granted, they can begin managing the estate.

Without a will, the process becomes one of intestacy, requiring a Grant of Letters of Administration.

“While there are some similarities between the two, the critical difference is identifying who is entitled to make the application,” says Ballantyne. “Because there’s no named executor, the court must determine who has priority, often the next of kin.”

This can make the process longer and more complex, highlighting the importance of creating and updating a valid will early.

What happens to insurance policies in probate?

Not all assets need to pass through probate, and insurance is one of the key examples.

“A grant of probate will generally be necessary where there are insurance proceeds forming part of an estate,” Ballantyne explains. “But if a life or funeral policy has a named beneficiary, the payout typically goes straight to them, bypassing the estate entirely.”

If a policy is owned through a superannuation fund, the rules can differ depending on the trustee and nomination setup.

Life and funeral insurance payouts can also help ease financial stress, as funeral insurance claims are often processed quickly once all required documents are submitted.

Can a property be sold before probate is granted?

It’s possible, but can be risky, to enter into a sale before probate is finalised.

“Property can technically be sold before a grant of probate is made, but care must be taken to ensure completion is subject to the grant being issued and the property being transmitted to the legal representative,” Ballantyne warns. “I’d strongly recommend obtaining legal advice before signing any contracts to sell property from an estate.”

Tips to make probate less stressful

Probate takes time, and that’s often what families underestimate.

“It’s important to understand that estate administration can take several months, and applying for a grant is just one step in the process,” says Ballantyne. “Getting advice from an experienced estate lawyer early can help you understand what’s involved and avoid unnecessary stress or costs later on.”

Keeping communication open among family members, keeping good records, and setting realistic expectations about timing can all make the process smoother.

Probate FAQ

What’s the difference between probate and a will?

A will outlines a person’s wishes; probate is the legal process that validates it and gives the executor authority to act.

Can I apply for probate myself, or do I need a solicitor?

You can apply yourself, but as Ballantyne notes, it’s a formal court process that can be complex for non-lawyers. Engaging a solicitor can save time, reduce mistakes, and ensure everything’s filed correctly.

How soon can you apply for probate after someone dies?

Applications can typically be made once the death certificate is issued and the required notice period has passed - usually about two to three weeks after death.

What happens if there are delays or objections to probate?

If someone contests the will or the court requests further information, the process pauses until those issues are resolved.

How much does it cost to apply for probate, and who is responsible for paying?

Court fees vary by state and estate value, but the cost is paid from the estate, not by the executor personally.

Can you sell a house before probate is granted?

Only under specific conditions, and completion must be subject to the grant being issued. Always seek legal advice first.

Planning ahead with confidence

Dealing with probate can feel daunting, especially during a time of loss. But understanding how the process works and knowing where to turn for help can make a world of difference. Whether you’re an executor managing a loved one’s estate or thinking ahead about your own affairs, having the right plans in place helps protect the people you care about most.

As James Ballantyne explains, “Getting advice early and understanding your responsibilities upfront can take away a lot of the stress that comes with administering an estate.”

At Real Insurance, we know how important it is to make these moments easier on your loved ones. From Life Insurance to Funeral Insurance, our policies are designed to provide financial protection when it’s needed most, helping families focus on what truly matters: supporting each other.