What Assets Need Probate in South Australia (and What Bypasses It)

The question executors get wrong most often isn't "how do I apply for probate?" — it's "do I even need to?" Applying for a Supreme Court grant when one isn't required wastes time and money. Skipping probate when it is required exposes you to personal liability. Getting the asset classification right from the start saves both.

The Core Rule: Solely Held Assets in the Deceased's Name

A grant of probate (where there is a will) or letters of administration (where there is no will) is generally required to access, transfer, or sell any asset that was held solely in the deceased's name and exceeds a financial institution's internal release threshold.

The key word is "solely." How an asset is owned — the legal title structure — determines whether probate is mandatory, avoidable, or irrelevant.

Assets That Bypass Probate Entirely

1. Joint tenancy real estate

If the deceased held real property as a joint tenant with another person (most commonly a spouse), the property passes automatically to the surviving owner through the legal rule of survivorship. No probate is required. The surviving owner lodges an "Application to Register Death by Survivor" (Form DOC 73.0 KB) directly with Land Services SA, along with the death certificate and identity documents.

This is entirely different from tenants in common, where each owner holds a distinct, separately transferable share. If the deceased was a tenant in common or the sole proprietor of real estate, probate is mandatory — there is no way around it.

2. Superannuation death benefits

Superannuation sits outside the estate for probate purposes in South Australia. The superannuation fund is a separate legal entity. When the account holder dies, the trustee of the fund — not the executor — determines how the death benefit is paid, based on the binding death benefit nomination (BDBN) lodged by the deceased.

If a valid BDBN names specific beneficiaries (such as a spouse or adult child), the super fund pays those people directly, without reference to the will and without probate. The money never enters the estate.

If there is no valid BDBN, or if the nomination has lapsed, the trustee exercises discretion and pays the benefit to eligible dependants or to the estate. If paid to the estate, probate may then be required to access those funds — but the trigger is payment to the estate, not the super balance itself.

This is one of the most common misconceptions among executors: people assume a large superannuation balance requires probate. In most cases it does not, provided the nomination is current and valid. Check the deceased's super fund directly.

3. Life insurance with named beneficiaries

Like superannuation, life insurance policies with named beneficiaries pay directly to those individuals outside the estate. The proceeds bypass probate and are not subject to the will's instructions.

If the life insurance policy names "the estate" as the beneficiary (or has no beneficiary listed), the payout becomes an estate asset and may require probate for the executor to access it.

4. Assets under the $15,000 statutory threshold

Section 100 of the Succession Act 2023 (SA), which commenced on 1 January 2025, permits any institution or individual holding $15,000 or less of the deceased's money or personal property to transfer it directly to a surviving spouse, domestic partner, or child — without requiring a Supreme Court grant. This applies to individual asset holders, not to the deceased's total estate value.

In practice, this means a credit union holding $12,000 in the deceased's name can release it to a surviving spouse under Section 100 without waiting for probate. However, some institutions are unfamiliar with or resistant to this statutory provision. Escalate to a branch manager and cite Section 100 of the Succession Act 2023 if a teller refuses.

Assets That Usually Require Probate

Solely held bank accounts above institutional thresholds

Banks set their own internal thresholds for releasing funds without a Supreme Court grant. These vary significantly:

• Commonwealth Bank: generally requires probate if solely held accounts total $100,000 or more
• Westpac: tiered system, with thresholds ranging from $40,000 to $100,000 depending on account type
• BankSA: much stricter internal limit, often requiring probate if total deposits are $50,000 or more
• ANZ: probate required if estate funds in solely owned accounts total $100,000 or more
• NAB: permits funeral invoice payments directly from estate funds up to $15,000, but requires a grant for broader access

An executor managing an estate split across two banks can find that one institution releases funds informally while the other freezes the account and demands probate — even when the total balances are identical. This inconsistency is one of the biggest sources of confusion and frustration in South Australian estate administration.

Solely owned real estate (or tenants in common shares)

As noted above, any real property held solely by the deceased or as a tenant in common requires probate before the executor can legally transfer or sell it. Following the grant, the executor lodges a "Transmission Application" with Land Services SA, accompanied by the Grant of Probate and identity documents. The Land Services SA registration fee for 2025/2026 is approximately $192.

Shares and investment accounts in the deceased's sole name

Most share registries and investment platforms require a certified copy of the Grant of Probate before transferring or selling holdings registered in the deceased's name. Some smaller holdings may be released through a simplified indemnity process, but this is at the registry's discretion.

Business interests

Shares in a private company, partnership interests, and trust distributions that flow to the deceased's estate all require probate before the executor can act on them. Business assets also require immediate attention from an accountant to ensure the business continues trading legally, tax obligations are met, and directors' duties are not breached.

The Small Estate Bypass: Public Trustee Administration

If the total estate is valued at $100,000 or less and contains no real property whatsoever, Section 73 of the Succession Act 2023 allows the Public Trustee of South Australia to administer the estate without requiring a Supreme Court grant. The Public Trustee publishes a notice in the Government Gazette and on its website, after which a "deemed grant" is established.

The cost trade-off matters here. The Supreme Court filing fee for estates up to $200,000 is $987. The Public Trustee charges a capital commission of 4.4% of gross asset value for estates up to $200,000. On a $90,000 estate, that is $3,960 in commission versus $987 in court fees — considerably more expensive for the estate. However, the Public Trustee route removes administrative burden from the executor entirely.

A Quick Decision Framework

Start with these questions:

1. Does the estate include any real property held solely by the deceased or as tenants in common? If yes, probate is mandatory.
2. Are any bank accounts held solely in the deceased's name with balances above the relevant bank's threshold? If yes, probate is likely required.
3. Is superannuation paid to named beneficiaries? If yes, it bypasses the estate and probate.
4. Is the total estate (excluding super and life insurance with named beneficiaries) under $100,000 with no real property? Consider Public Trustee administration under Section 73.

Mapping the deceased's assets against these categories before taking any formal steps saves significant time and cost. The South Australia Probate Process Guide includes a full asset classification matrix, a bank threshold comparison table, and step-by-step instructions for both the CourtSA probate application and the Land Services SA property transmission process.

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