Probate is not always needed.
Whether a grant is needed depends on how each asset was held and on what each bank, fund or other holder requires.
The executor is responsible for working this out.
When probate is usually needed
A grant is usually needed where:
- The deceased owned land in their sole name.
- The deceased owned land as a tenant in common with another person.
- The deceased held a substantial amount in an account in their sole name.
- A bank, fund or other holder will not release an asset without a grant.
Assets held as joint tenants
Land held as joint tenants passes to the surviving owner.
It does not form part of the estate and does not need probate.
The title must still be updated with NSW Land Registry Services.
Jointly owned bank accounts and other jointly owned property usually pass to the survivor without a grant.
Superannuation and life insurance
Superannuation generally sits outside the estate.
The fund decides who receives it, based on its rules and any nomination.
Contact the fund directly.
Life insurance depends on the policy terms. Ask the insurer whether it needs a grant.
Small estates and bank accounts
No law in NSW sets a single amount below which probate is never needed.
Each bank, fund, share registry and other holder sets its own policy on when it will release money without a grant.
The Supreme Court states that holders may release modest amounts without a grant where next of kin status is shown.
They may ask for the original death certificate, a declaration of entitlement or an indemnity.
The ATO notes that smaller estates may not need a grant, but some asset holders may still ask for one.
Ask each holder in writing what it requires before deciding not to apply.
Where people get caught
Assuming one bank's answer applies to all
Each holder has its own policy and its own limit.
Assuming joint tenancy when the land is held as tenants in common.
A search of the title with NSW Land Registry Services shows how the land is held.
Signing an indemnity without understanding it.
An indemnity can make you personally responsible if the money is later claimed by someone else.
Distributing before debts and tax are dealt with.
Debts and tax obligations come first. The ATO warns that an executor who distributes knowing of a tax debt may be personally liable.
Forgetting family provision claims.
A claim can be made even where no grant was obtained.
If no grant is needed, the estate can be distributed after the debts are paid
The estate must still go to the people named in the will, or under the rules for dying without a will.
The executor or next of kin should keep records of every receipt and payment.
Tax obligations must be finalised. A date of death tax return may be needed.
- List every asset and how it was held.
- Search the title for any land.
- Contact each bank, fund and holder and ask what it needs to release the asset.
- Keep their answers in writing.
- If any holder needs a grant, or any land is in the sole name or held as tenants in common, apply for probate.
Common questions
Is there a dollar limit below which probate is not needed in NSW?
No single limit is set by law. Each bank or holder applies its own policy.
Does the family home need probate?
Not if it was held as joint tenants and the other owner survives. The title must still be updated. A sole name or tenants in common home usually needs a grant.
Does superannuation need probate?
Generally no. Superannuation usually sits outside the estate. Contact the fund directly and ask what it requires.
Find out whether the estate needs a grant before you contact every bank. Call (02) 8062 6300.
This article is general information only. It is not legal advice for your situation.