It is not always necessary to obtain a Grant of Probate. Probate will generally be required if the deceased owned:
- real property (land)
- assets worth more than $20,000; or
- assets with an institution (e.g. a bank) that requires a Grant of Probate before releasing the assets.
It is important to remember that when we talk about the deceased’s assets, we are talking about assets that the deceased owned in their sole name. Assets owned jointly with another person will become the property of the surviving joint owner by operation of law (This is one of the things to keep in mind when making a Will). While no Grant of Probate is required in relation to joint assets, there may be other paperwork required by the institution controlling the asset. For example, where the joint owner of land passes away there is a need to lodge an Application to Register A Death form with the Lands Titles Office, along with a copy of the death certificate of the deceased. A new Certificate of Title can then be issued in the name of the surviving joint owner(s).
In addition, superannuation assets may be able to be dealt with without Probate. This is because superannuation funds have their own requirements for dealing with deceased estates. Hopefully, the deceased will have nominated a beneficiary who they have directed will receive amounts held in superannuation. If not, the superannuation fund may still deal with the matter without the need for Probate, depending on the circumstances.
The best way to determine whether a Grant of Probate is required is to talk to a lawyer experienced in deceased estate administration. This can normally be determined quite quickly.