The answer is no, not always. Much will depend on the nature and extent of the deceased’s assets. Where Probate has not been obtained, the estate is regarded as being administered ‘informally’. This may occur where organisations (such as banks) release funds and other assets without sighting any Probate documentation because the amount held in the deceased’s name is minimal and there are no complications.

If the deceased owned a vehicle that was registered in their name, the vehicle registration body does not always require Probate. The Roads & Maritime Services (RMS) in New South Wales does not always require Probate. For example, where there is no will, registration may be transferred into the name of the Administrator of the estate by providing RMS with a completed Statutory Declaration stating that the applicant is entitled to represent the estate.

However, individuals representing the estate should be cautious when deciding to administer the estate without Probate. Individuals applying for the release of funds or assets from organisations without Probate will be required to indemnify the organisation prior to obtaining such funds or assets.

Furthermore, if the executor fails to retain sufficient funds to pay the creditors prior to making distributions to the beneficiaries, the executor may be held personally liable for those debts.

Probate will be necessary in the following circumstances:

  • If a home or other land is being distributed under a will that is in the deceased’s name only
  • If the deceased is a tenant in common in property with one or more individuals then probate will be required to transfer that share of the land
  • If the institutions that hold the deceased’s assets require a copy of Probate before releasing any assets to the estate

If you require any further information in relation to obtaining Probate, contact the team of lawyers at The Quinn Group on (02) 9223 9166 or submit an online enquiry.