Knowledge Centre
When Someone Dies in Australia: Probate and Sorting Out the Estate
Complete guide to the after death process in Australia. Learn about probate, estate administration, executor duties, intestacy rules, and what happens to your estate when someone dies. State-by-state guidance for NSW, VIC, QLD.
Quick Answer
When someone dies, their estate goes through probate (Supreme Court validation) if significant assets exist. The executor then collects assets, pays debts, and distributes to beneficiaries. Without a will, state intestacy laws apply. Simple estates: 3-6 months. Complex estates with property or disputes: 1-3+ years.
Understanding what happens after death is essential for anyone making a will or acting as an executor. The process involves obtaining legal authority, managing assets, paying debts, and distributing the estate according to the will, or intestacy laws if there's no will.
This guide is part of WillBuddy's Knowledge Centre covering the probate process Australia, estate administration, and intestacy rules. We provide practical guidance tailored to each state's requirements.
WillBuddy's guided will drafting can help reduce probate delays by clearly identifying assets and appointing suitable executors, see how the product works.
In This Section You'll Learn
- What probate is and when it's required
- Complete estate administration timeline and steps
- What happens when someone dies without a will (intestacy)
- State-by-state probate procedures and costs
- How to avoid common delays and complications
Featured Guides in This Pillar
- Probate Process Australia – Complete court application guide
- Estate Administration Executor Guide – Step-by-step duties
- Died Without a Will: Intestacy Australia – Intestacy rules explained
Overview: What Happens After Someone Dies
Immediate Steps (First 2 Weeks)
| Task | Who | Timeline |
|---|---|---|
| Obtain death certificate | Funeral director or Registry | Days 3-10 |
| Locate original will | Family/executor | Day 1-7 |
| Notify relevant parties | Family member | Week 1-2 |
| Secure property | Executor/family | Immediately |
| Arrange funeral | Family/executor | Days 1-7 |
Estate Administration Timeline
| Phase | Duration | Key Activities |
|---|---|---|
| Immediate | 0-2 weeks | Funeral, secure assets, locate will |
| Preparation | 2-6 weeks | Gather documents, asset valuations |
| Probate application | 4-12 weeks | Lodge with Supreme Court, await grant |
| Administration | 3-12 months | Collect assets, pay debts, manage estate |
| Distribution | 2-4 weeks | Transfer to beneficiaries after claims period |
| Finalisation | Ongoing | Final tax returns, accounts, releases |
Probate Explained
What is Probate?
Probate is a Supreme Court order that:
- Confirms the will is the deceased's last valid will
- Confirms the deceased has died
- Authorises the executor to act on behalf of the estate
- Allows asset holders to release funds to the executor
When is Probate Required?
| Asset Type | Probate Usually Required | Notes |
|---|---|---|
| Real property (house, land) | Yes | Required for title transfer |
| Larger bank accounts | Usually | Each bank sets its own threshold |
| Share holdings | Yes | Share registries require probate |
| Life insurance | Sometimes | Depends on policy structure |
| Superannuation | No | Passes per nomination or trustee decision |
| Joint tenancy property | No | Passes automatically to survivor |
| Personal effects | No | Can be distributed without probate |
When Probate May NOT Be Required
- Deceased had no assets in their sole name
- All property held as joint tenants
- Bank accounts below the institution's own threshold
- Small estates under state thresholds
Probate Process by State
New South Wales
| Aspect | Details |
|---|---|
| Court | Supreme Court of NSW |
| Legislation | Probate & Administration Act 1898 (NSW) |
| Application | Online via ORSOnline or paper |
| Processing time | 4-8 weeks (uncontested) |
| Small estate threshold | $50,000 (simplified affidavit process) |
Probate Fees NSW:
| Estate Value | Court Fee |
|---|---|
| Under $100,000 | $0 |
| $100,000 - $250,000 | $978 |
| $250,000 - $500,000 | $1,370 |
| $500,000 - $1,000,000 | $1,997 |
| $1,000,000 - $2,000,000 | $2,741 |
| Over $2,000,000 | $3,720 |
Victoria
| Aspect | Details |
|---|---|
| Court | Supreme Court of Victoria |
| Legislation | Administration and Probate Act 1958 (Vic) |
| Application | Online or paper |
| Processing time | 4-8 weeks (uncontested) |
| Small estate threshold | $50,000 |
Probate Fees VIC:
| Application Type | Court Fee |
|---|---|
| All estate values | $421.70 |
| Complex applications | Additional fees may apply |
Queensland
| Aspect | Details |
|---|---|
| Court | Supreme Court of Queensland |
| Legislation | Succession Act 1981 (Qld) |
| Application | Paper-based |
| Processing time | 6-12 weeks (uncontested) |
| Small estate threshold | $150,000 |
Probate Fees QLD:
| Estate Value | Court Fee |
|---|---|
| Under $300,000 | $0 |
| $300,000 and over | $793 |
Estate Administration Steps
Step 1: Gather Documents
- Original will – Check home, solicitor, bank, Public Trustee
- Death certificate – Order multiple certified copies
- Asset statements – Bank, super, shares, property titles
- Debt statements – Mortgages, loans, credit cards
- Tax records – Last tax return, TFN
Step 2: Notify Institutions
| Institution | Documents Required | Purpose |
|---|---|---|
| Banks | Death certificate, probate | Freeze/release accounts |
| Super funds | Death certificate, claim form | Death benefit claim |
| Centrelink | Death certificate | Stop payments, claim any owing |
| Land titles | Probate, transfer forms | Property transfer |
| Share registries | Probate, transfer forms | Share transfers |
| Insurance | Death certificate, policy | Claims |
| ATO | Death certificate, TFN | Final tax return |
Step 3: Value the Estate
| Asset Type | Valuation Method |
|---|---|
| Real property | Market appraisal or sworn valuation |
| Bank accounts | Statement at date of death |
| Shares | Closing price on date of death |
| Vehicles | Market value (RedBook) |
| Personal effects | Estimated value, formal valuation if significant |
| Business interests | Professional valuation |
Step 4: Apply for Probate
Documents typically required:
- Original will (or certified copy if lodged with court)
- Death certificate
- Executor's affidavit
- Inventory of assets and liabilities
- Court forms (state-specific)
- Filing fee
Step 5: Administer the Estate
Pay debts in order of priority:
- Funeral and testamentary expenses
- Secured debts (mortgages)
- Priority debts (wages, taxes)
- Unsecured debts (credit cards, personal loans)
- Deferred debts
Lodge tax returns:
- Date of death return (income to date of death)
- Estate return(s) (income during administration)
Step 6: Distribute Estate
Wait for claims period:
- NSW: family provision claims generally within 12 months from death (s58)
- VIC: generally within 6 months from grant of probate (s99)
- QLD: applications generally within 9 months from death; an executor with no written notice of a claim is generally protected if they distribute from 6 months after death (s41(8), s44)
- Other states differ: see the state guides, such as How to Make a Will in Queensland
Then distribute:
- Specific gifts (named items to named people)
- Pecuniary legacies (cash amounts)
- Residuary estate (remainder after gifts and debts)
Intestacy: Dying Without a Will
What Happens Without a Will?
When someone dies intestate (without a valid will), state intestacy laws determine distribution:
Intestacy Distribution by State
| Family Situation | NSW | VIC | QLD |
|---|---|---|---|
| Spouse only | Spouse gets all | Spouse gets all | Spouse gets all |
| Spouse + deceased's children | If all children are also the spouse's: spouse gets all. Otherwise: spouse gets personal effects + statutory legacy (indexed to inflation) + half residue; Children: half residue | If all issue are also the partner's: partner gets all. Otherwise: partner gets personal chattels + statutory amount (indexed each year) + half residue; Children: half residue | Spouse: $150,000 + household chattels + half residue (one child) or one-third (more than one child), whoever the children's other parent is; Children: the rest |
| Children only (no spouse) | Children equally | Children equally | Children equally |
| Parents only | Parents equally | Parents equally | Parents equally |
| Siblings only | Siblings equally | Siblings equally | Siblings equally |
| No close relatives | Crown (government) | Crown (government) | Crown (government) |
Who CANNOT Inherit Under Intestacy
- De facto partners who do not meet the state test (a qualifying de facto partner inherits as a spouse)
- Step-children (unless legally adopted)
- Friends
- Charities
- Former spouses
Applying for Letters of Administration
When there's no will, the next of kin applies for Letters of Administration instead of probate:
| Priority Order | Relationship |
|---|---|
| 1 | Surviving spouse/de facto partner |
| 2 | Children of the deceased |
| 3 | Parents |
| 4 | Siblings |
| 5 | Other next of kin |
Family Provision Claims
What Are Family Provision Claims?
Eligible persons can challenge a will (or intestacy distribution) if they believe they were not adequately provided for.
Who Can Claim?
| State | Eligible Claimants |
|---|---|
| NSW | Spouse, de facto, children (any age), former spouse, certain dependent grandchildren or household members, and a person in a close personal relationship with you |
| VIC | Spouse or domestic partner, children and step-children (including adult children), some former spouses or partners, certain grandchildren, household members and others who depended on you |
| QLD | Spouse (including a qualifying de facto partner), children of any age (including adopted children and, generally, stepchildren), certain dependants |
Time Limits
| State | Time Limit |
|---|---|
| NSW | 12 months from death |
| VIC | 6 months from grant of probate |
| QLD | 9 months from death |
| WA | 6 months from the executor becoming entitled to administer |
| SA | 6 months from grant |
| TAS | 3 months from grant |
| ACT | 6 months from grant |
| NT | 12 months from grant |
Common Delays and How to Avoid Them
| Delay Cause | Prevention |
|---|---|
| Can't find original will | Store safely, tell executor location |
| Missing beneficiaries | Maintain current contact details in will |
| Asset disputes | Document ownership clearly |
| Family provision claims | Consider eligible persons in will |
| Tax issues | Keep records, lodge returns on time |
| Overseas assets | Seek specialist advice, consider separate wills |
| Business interests | Clear succession planning |
Executor Personal Liability
Executors can be personally liable for:
- Distributing before waiting period expires
- Paying beneficiaries before debts
- Mismanaging estate assets
- Not defending valid claims
- Failing to lodge tax returns
Protection: Obtain beneficiary releases, keep detailed records, seek legal advice for complex issues.
Related Guides
- Probate Process Australia – Detailed court application guide
- Estate Administration Guide – Complete executor checklist
- Intestacy Australia – What happens without a will
- Will Executor Role – Executor duties explained
- Executor Fees Australia – Commission and costs
Further Resources
- Supreme Court NSW – Probate
- Supreme Court VIC – Probate
- Supreme Court QLD – Probate
- ATO – Deceased Estates
Getting Started with WillBuddy
A well-drafted will makes estate administration smoother and faster. WillBuddy helps you create a clear will, with signing instructions, which can reduce probate delays and family disputes.
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Is Probate Required in Australia? When You Need a Grant
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This content is general information only and is not legal advice. Estate planning laws vary between Australian states and territories, so consider seeking advice from a qualified legal professional for your specific circumstances.