In Queensland, a Grant of Probate from the Supreme Court often formalises an executor’s right to manage a deceased estate.…
In Queensland, probate is often a crucial step for executors administering a deceased estate. Yet it’s not automatically required for every estate. Depending on asset values, ownership structures, and financial institution policies, some estates avoid full court procedures. If you’re an executor or beneficiary, you’ll likely wonder: “Must we get probate for this estate or can we skip it?”
This article explains what probate is, why it’s sometimes essential, and under what conditions you might bypass it, clarifying typical thresholds and exceptions in Queensland law.
Definition of Probate in Queensland
Probate is an official document issued by the Supreme Court of Queensland confirming:
- The will is valid,
- The executor is authorised to collect the deceased’s assets, pay debts, and distribute the remainder to beneficiaries.
Without probate, many banks or government registries refuse to transfer accounts or property, to avoid liability if the will proves invalid or if a later will emerges¹.
“Probate is like a legal key to unlock the estate—some estates need it, some don’t, and discerning the difference saves time and stress.”
Why Is There Confusion?
Many people see references to “small estates” not needing probate, or hear anecdotes about banks releasing funds for funeral costs without official papers. Requirements vary among financial institutions, property types, or total estate values². Executors often scramble to discover an asset’s threshold or the local practice. Let’s clear up these thresholds and real-world exceptions.
When Probate Is Typically Required
Real Property Solely in the Deceased’s Name
If the deceased owned real estate in their name alone (i.e., not in joint tenancy), the Titles Registry usually demands probate before transferring or selling that property. This ensures the rightful executor, validated by a court order, controls the property.
- Example: If a widow passes, leaving a house solely in her name, the executor typically obtains probate for the official Land Title Office transfer.
(Note: Property held as joint tenants bypasses probate; it goes automatically to the surviving joint owner³.)
Significant Bank Accounts or Investments
Many banks set internal thresholds—often ranging from $20,000 to $50,000—above which they require probate. The precise limit differs per institution. If the deceased’s accounts surpass that limit, the bank won’t release funds solely on the executor’s say-so. Instead, they request the Grant of Probate.
“Each bank has its own comfort level for releasing funds. Some release $30,000 without probate, others hold at $15,000.”
Shares, Managed Funds, and Larger Estates
Companies like share registries typically demand probate before transferring or selling a decedent’s shares if the total holding is above a certain threshold. Similarly, if the estate’s overall complexity or size is substantial, institutions or beneficiaries may push for probate to confirm the executor’s legal authority and avoid disputes.
Situations Where Probate May Not Be Required
Jointly Held Assets
If all major assets—like a home, bank accounts, or cars—were jointly owned with a surviving spouse or partner, these pass directly to the survivor under the “right of survivorship.” The sole name on the asset is never changed through the probate process. Instead, the survivor typically does a direct transfer with an application and the death certificate. In such a scenario, probate is often unnecessary⁴.
Small Balances or Minimal Estate
Some institutions waive probate if the account balance is below their threshold. They might accept:
- Death certificate,
- Will copy (if any, even if not official),
- Or a statutory declaration verifying you’re the rightful claimant.
No standard rule applies; every bank or financial institution sets its own threshold. A small estate with no real property and only modest savings may thus bypass probate altogether.
“I once handled a case where three different banks had three different thresholds—$15k, $20k, $50k—creating confusion for the executor.”
If the Will Explicitly Excludes a Complex Administration
In rare instances, testators structure their estate to avoid formal probate by carefully arranging joint ownership or beneficiary designations (like superannuation or life insurance). While not guaranteed, it often reduces the estate portion requiring probate.
Table: Factors Influencing the Need for Probate in QLD
Factor | Likely Probate Required | May Not Need Probate |
---|---|---|
Real Property | Sole ownership in deceased’s name | Joint tenancy property (transfers via survivorship) |
Bank Accounts | Balances above bank’s threshold ($20k–$50k, varies) | Small balances under threshold; bank can release without probate |
Shares/Investments | Large holdings or share registry demands a court-sealed document | Very small share values; or specific internal policy below threshold |
Superannuation / Life Insurance | If paid to the estate** (no binding nomination) | If directly paid to a named beneficiary (bypassing the estate) |
Estate Complexity | Multiple assets, potential disputes, large sums involved | Estate is minor, everything owned jointly, or single low-value account |
(Note: This table is a general guide. Always confirm the exact policy of each institution involved.)
Real-World Examples of Threshold Scenarios
- Joe’s Estate: $70,000 in a single bank account, no real estate, no other assets.
- Bank demands probate since $70,000 exceeds their $50,000 threshold.
- Executor obtains a Grant of Probate. Bank then releases funds to the executor’s estate account for distribution.
- Sarah’s Estate: $15,000 in savings, house owned jointly with her spouse.
- Spouse automatically takes ownership of the house via joint tenancy.
- The bank’s threshold is $20,000, so no probate required. Spouse or next-of-kin can fill a claim form; bank releases $15,000.
- Estate with Share Portfolio: Deceased had a $5,000 share portfolio plus $30,000 bank account.
- The share registry might require probate at any balance above $1,000.
- The bank’s threshold is $25,000. Because both are over the line, probate is required to handle both accounts properly.
Potential Pitfalls of Skipping Probate
Even if it seems possible to skip probate, there’s risk:
- Discovery of Additional Assets later that exceed thresholds or appear solely in the deceased’s name. If distributions were made prematurely, you may need to reapply for probate.
- Disputes or Family Provision Claims: If conflict arises, formal probate might become necessary to prove the will’s validity.
- Lack of Clear Authority: Some parties (like the Titles Registry for property) strictly require official probate. Attempting alternative routes can cause long delays or refusals.
“Executors who assume small estate rules apply can face big trouble if hidden debts or unexpected assets surface. It’s safer to confirm all assets from the start.”
7. Steps to Confirm If Probate Is Needed
- Audit All Assets: List every property, account, shareholding, insurance policy, or personal belonging.
- Identify Ownership Structure: Is property held in joint tenancy? Are bank accounts joint or solely owned?
- Ask Each Institution: Confirm thresholds for releasing funds without probate.
- Review Will: If the will is straightforward, minor assets might not demand probate. However, if there’s real property in the deceased’s sole name, probate is likely.
“Clarity emerges once you contact each bank, share registry, and asset holder. The threshold question: ‘Do they require a Grant of Probate to release or transfer these funds?’”
Frequently Asked Questions (FAQ)
Q1: If a property is in joint tenancy with a spouse, is probate ever needed for that property?
A: Not for the transfer of that property, since it goes directly to the surviving joint tenant. But if the estate also includes a separate investment property in sole ownership, probate might still be needed for that asset¹.
Q2: What if an institution wants probate but we think we can skip it?
A: Usually, you can’t force them to release assets without probate if that’s their policy. You either comply or potentially see if an alternative arrangement is possible (like a letter of indemnity, but banks rarely accept that for large sums).
Q3: Does superannuation require probate?
A: If the super is paid to a named beneficiary via binding nomination, it bypasses the estate (and probate). If it’s paid to the estate, then to distribute it, you might need probate to collect those funds¹.
Q4: Could a small estate morph into requiring probate if a hidden asset surfaces?
A: Yes. If you discover a $100k share portfolio or real property after distributing a $10k bank account, you’d likely have to apply for probate retroactively. This can complicate earlier distributions.
Q5: If the will is extremely simple, can we skip probate purely for that reason?
A: Not necessarily. The type and ownership of assets matter more than the will’s complexity. Even a simple will might need probate for sole-property transfers or large bank holdings.
Conclusion
When probate is required in Queensland hinges less on the complexity of a will and more on asset ownership structures and each institution’s internal policy. Large or solely held assets (like real property) or accounts above certain thresholds will almost always demand a Grant of Probate. Conversely, if the estate is tiny or everything is jointly owned, you might skip the formal process. Executors and beneficiaries should:
- Identify all estate assets,
- Determine how each is owned (joint vs. sole),
- Contact relevant banks or registries about thresholds,
- Assess the cost and time of a probate application vs. informal release policies.
Sticking to these steps—and confirming that no further complexities (disputes, large hidden assets, or unrecognised claims) lurk—can clarify whether probate is essential or if the estate can be administered under simpler means.
Key Takeaways:
- Real Property in Sole Name: Usually mandates probate for title transfer.
- Institution Thresholds: Banks/registries set varying cut-offs for requiring probate.
- Joint Tenancy: Typically bypasses probate.
- Superannuation: If paid directly to a beneficiary, no probate needed; if paid to the estate, might require probate.
- Double-Check: In small or purely joint estates, you may skip probate. But confirm all assets and no hidden liabilities exist first.
By understanding the thresholds and exceptions, executors can avoid unnecessary steps or, conversely, prevent stumbling onto a requirement late in the administration process—ensuring the estate’s distribution meets Queensland law thoroughly and efficiently.