- (07) 5506 9800
- office@hqf.com.au
- 2/82 Marine Parade, Coolangatta, 4225, QLD
- PO Box 327, Coolangatta
WILLS AND ESTATES
Share this article
What is probate in Australia – and does every estate actually need it? These are two of the most common questions families face after losing a loved one.
Probate is the legal process by which a deceased person’s will is validated by the Supreme Court and the executor receives formal authority to administer the estate.
But it is not always required, and understanding when you need it – and when you don’t – can save your family significant time, money, and stress.
This guide explains what probate is, how it works in Queensland and New South Wales, when you need it, and what to expect if you are the executor of an estate.
Probate is a court order issued by the Supreme Court of the relevant state. It does two things: it confirms the will is valid and represents their last will, and it gives the executor named in that will the formal legal authority to deal with the estate’s assets.
Think of a Grant of Probate as an official licence. Banks, share registries, land registries, and other institutions that hold the deceased’s assets will not release those assets to anyone – including the named executor – without it. Probate protects those institutions from liability and stops the wrong person from administering the estate
If the deceased died without a will (intestate), there is no executor and no will to validate. Instead, a family member must apply to the Supreme Court for Letters of Administration – a parallel process that achieves the same outcome but under the intestacy rules. Our earlier post on what happens if someone dies without a will covers that process in detail.
No – and this surprises many people. Whether you need probate depends on the nature and value of the deceased’s assets, how those assets were held, and the requirements of the specific institutions involved.
You typically do not need probate in the following situations:
You typically need probate when the deceased held any of the following solely in their own name:
Never assume probate is not required without first contacting each institution holding assets. Policies vary and change without notice.
The probate process differs between Queensland and New South Wales in several respects – including the forms used, the court fees, and the online systems involved.
In Queensland, probate applications go to the Supreme Court of Queensland. The general steps are:
Queensland is unique among Australian states in that it does not mandate probate for every estate – some estates can be administered without a grant where assets are small or all jointly held. However, this is the exception rather than the rule, and legal advice is essential before proceeding without probate.
In NSW, most uncontested probate applications lodge online through the NSW Supreme Court Online Registry. The steps are broadly similar to Queensland:
In NSW, executors should lodge their application within six months of the date of death. If you lodge later, the Affidavit of Executor must explain the delay, and the court may query it.
This is a common situation for families in the Coolangatta–Tweed corridor, where it is not unusual to hold property in Queensland, bank accounts in New South Wales, and investments across both states. A Grant of Probate issued by one state’s Supreme Court only has legal force in that state.
To administer assets in the other state, the executor must apply to have the grant resealed in that jurisdiction. Resealing is simpler and less expensive than obtaining a fresh grant, but the executor must file a separate application with the other state’s court. At HQF Lawyers, our probate and estate administration team manages resealing applications across both Queensland and New South Wales as part of our estate administration service.
Once the application is filed with the court, the grant typically issues within 4 to 8 weeks in both Queensland and NSW – assuming the application is complete and accurate. Delays occur when:
The grant of probate is just the beginning of estate administration. After the grant issues, the executor must collect assets, pay debts, prepare and lodge tax returns for the deceased and the estate, and then distribute the estate to beneficiaries. For straightforward estates, the full process typically takes six to twelve months from death to final distribution.
Disclaimer
The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice. Readers should seek legal advice about their specific circumstances.
Share this article
Please describe your enquiry below
In Queensland, there is no legal requirement for an executor to engage a solicitor to apply for probate. In NSW, the online system is designed to be used directly by executors. However, the process involves strict court requirements – any error in the application can result in a requisition, delay, or rejection. Executors who are unfamiliar with legal processes, dealing with complex estates, or administering assets across multiple states should strongly consider engaging a solicitor. Our estate administration team offers fixed-fee probate services for straightforward estates.
If an executor fails to apply within a reasonable time, beneficiaries can become frustrated, creditors can make claims against the estate, and in Queensland, the Public Trustee may step in if no application is made within three months. In NSW, unexplained delays beyond six months can complicate the application. If you are an executor and you are unsure how to proceed, seek legal advice promptly.
Yes. Once probate issues, the will becomes a public document – anyone can apply to the court to obtain a copy. If the testator had concerns about privacy (for example, about the specific gifts made, or the identity of beneficiaries), this is worth considering when drafting the will. A testamentary trust or other structure may offer some mitigation.
Yes. A person may challenge the validity of a will on grounds including lack of testamentary capacity, undue influence, fraud, or failure to comply with formal execution requirements. If someone lodges a challenge, the court stays the probate application until it resolves the dispute. Separately, eligible persons who believe they have not been adequately provided for under the will may bring a family provision application – which is different from contesting validity. If you face either situation, contact our estate litigation team for advice.