Do you need Probate?

Start with real estate

If the deceased owned real estate you need to find out HOW they owned it. Were they the SOLE OWNER ("Sole Proprietor") of the real estate? If so, you need Probate to transfer ownership to anyone else.

Did they own the real estate as a "JOINT PROPRIETOR" (sometimes called "joint tenant", even though it has nothing to do with renting).
If they owned the real estate as a Joint Proprietor, is the other Joint Proprietor still alive? If they are, you DON'T need Probate to transfer ownership.
But if they owned only PART of the real estate (as a "TENANT IN COMMON") then you DO need Probate to authorise the transfer of their share.

You find out about real estate ownership from the Certificate of Title. You might have found the Certificate of Title already, but if you can't find it you can order a copy of the title.

If you find that you need Probate to transfer real estate ownership, that's it - you apply for it.

If you don't need Probate to transfer real estate, you find out if you need Probate to release other assets, like:

  • Retirement village accommodation bonds (which usually require Probate)
  • Superannuation benefits
  • Motor vehicles
  • Bank accounts.

Bank accounts

There are no uniform rules for banks - every bank has its own policy. Some will release only $5,000 without Probate, others $20,000 and some even more. To find out, you ask the bank.

Motor vehicles

It is our understanding that VicRoads will transfer ownership to a surviving husband/wife WITHOUT Probate, but they require Probate to transfer a vehicle to anyone else. The VicRoads website seems clear enough about this, yet people sometimes tell us that they get different stories from VicRoads staff. You can check the written policy at the VicRoads website. (Or you can see our summary of VicRoads policy here - see summary).

Click here for the VicRoads "deceased estate pack".

Shares

If the deceased estate contained only shares, they could be the thing that makes it necessary to apply for Probate. Check with the share registry to find out if you need probate.

Superannuation / Insurance

Superannuation / Insurance policies vary, so you need to do a bit of digging to find out how payments are handled. If the deceased had lodged a "nominated beneficiary" statement with the super company it simplifies access by a spouse/partner.
The proceeds might also be under the control of a "trustee".

BACK TO  the start of "do I need probate"