Do I Need Probate in the ACT? Thresholds, Exceptions, and Alternatives

One of the first decisions an ACT executor faces is whether to apply for probate at all. Probate is not legally compelled in every situation — it is required by asset holders when they won't release assets without court authority. Whether you actually need it depends almost entirely on what the deceased owned and how they owned it.

The Basic Rule: Probate Is Triggered by Asset Holders, Not by Law

The ACT Supreme Court does not automatically require every deceased estate to go through probate. Instead, specific institutions require probate as a precondition before they will release or transfer assets. If none of the assets trigger this requirement, many small or simple estates can be settled without a court application.

There are three main triggers:

1. Real property held solely or as a tenant in common If the deceased owned real estate in the ACT — whether a family home, an investment property, or a rural block — the ACT Land Titles Office requires either a Grant of Probate (if there's a Will) or Letters of Administration (if there's no Will) before processing any transfer. This is an absolute requirement. There is no bank threshold or small estate exception that bypasses Land Titles.

If the property was held as joint tenants (not tenants in common), it passes automatically to the surviving owner by survivorship — no probate needed. The surviving owner files a Notice of Death by Surviving Proprietor (Form 015-ND, $178) with Access Canberra to update the title. The distinction between joint tenancy and tenants in common is determined by how ownership is recorded on the Certificate of Title — check this document first.

2. Bank account balances above the institution's threshold Each Australian bank sets its own threshold above which it will not release funds from a deceased sole account without a Grant of Probate. These thresholds vary significantly and are not publicly standardised:

These thresholds apply to sole accounts. Joint accounts are typically accessible by the surviving account holder without probate. The thresholds above are approximate and can change — always confirm with the bank's estate administration team rather than a branch teller.

For balances below the threshold, banks typically use an indemnity form signed by the executor or next of kin, releasing the bank from liability if the distribution turns out to be incorrect.

3. Other formal asset registrations Share registries, managed funds, and some superannuation funds also require probate above certain amounts. Superannuation is a separate legal structure — it does not automatically form part of the probate estate and is controlled by the fund trustee's binding death benefit nomination process — but the fund may still request a Grant of Probate as part of its verification process.

When You May Not Need Probate

All assets are jointly held If the deceased held all property as a joint tenant, and all bank accounts were joint, the entire estate may pass by survivorship without probate. The surviving owner updates each asset individually through the relevant institution using the Death Certificate.

Small estate with no real property If the estate consists only of bank accounts and personal effects, and all account balances fall below the relevant bank thresholds, you may be able to settle the estate entirely through bank indemnity forms and personal property distribution without any court application.

ACT Public Trustee Election for Small Estates Under the Administration and Probate Act 1929, the ACT Public Trustee and Guardian (PTG) has statutory power to administer estates valued under $150,000 through an "election to administer" process — without requiring a formal Grant of Probate from the Supreme Court. This is faster and cheaper than formal probate, but it is only available when the PTG itself takes on the administration. The PTG charges capital commission (starting at 4.4% on the first $300,000 of gross value), so for an estate worth $150,000, that's up to $6,600 in commission fees.

If the estate is small and you (rather than the PTG) are administering it, this option doesn't directly apply to you — it applies to situations where the PTG steps in on the family's behalf.

Section 69B: Releasing Bank Funds Before Probate

Under Section 69B of the federal Banking Act, banks can release up to $15,000 from a deceased person's account without requiring probate, specifically for estate expenses such as funeral costs or court filing fees. This provision exists because obtaining probate itself costs money — and the funds needed to pay those costs may be locked in the estate's accounts.

Not all banks apply this provision uniformly, and the $15,000 cap is a legislative maximum rather than a guaranteed right. Make the request in writing to the bank's estate administration team, citing Section 69B and specifying the funeral invoice or court filing fee as the intended use. Most banks will accommodate this if the evidence is clear.

Calculating the Gross Estate Value

If you decide to apply for probate, the ACT Supreme Court requires you to declare the gross estate value — not the net value after debts. This determines your filing fee tier:

Gross estate value includes all assets owned by the deceased at the date of death: bank balances, real property at market value, vehicles, shares, household contents, and any entitlements such as tax refunds or unpaid wages. Mortgage balances, credit card debts, and other liabilities are not deducted for this calculation.

The Decision Tree

Start with these questions:

1. Did the deceased own real property in the ACT (sole or as tenant in common)?

   • Yes → Probate required
   • No → Continue to question 2

2. Did the deceased have sole bank accounts above any bank's threshold?

   • Yes → Probate likely required (check with each bank)
   • No → Continue to question 3

3. Were all assets jointly held?

   • Yes → Probate probably not required; update each asset individually with Death Certificate
   • No → Assess each remaining asset type with the relevant institution

Working out whether you need probate, and which forms to file if you do, is one of the first real decisions in ACT estate administration. The ACT Estate Settlement Guide includes a decision tree, the bank threshold reference table, and the full form sequence for both probate and non-probate administration paths.

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