Updated 25 October 2026
CM Law's Ultimate 50 List - Probate Problem #22: Can Probate Be Avoided?
Yes, some NSW estates can be administered without a grant of probate. Whether that is possible depends on asset ownership, the institutions holding the assets and the circumstances of the estate. Having a will does not automatically mean probate is required, and having a modest estate does not automatically excuse it.
At CM Lawyers, we stress that superannuation nominations need attention alongside the will. A professionally prepared will can still leave a serious gap if nobody checks the nomination itself. Before focusing on avoiding probate, establish who should receive each asset and which document actually controls that outcome.
What probate does
A grant of probate confirms the will and the executor’s authority to administer the estate. The Supreme Court of NSW confirms that there is no statutory requirement to obtain probate in every case. An uncontested application is ordinarily considered by a registrar on the papers; it does not involve a judge supervising every payment or distribution.
If there is no valid will and a grant is needed, the usual application is for letters of administration. A different form of administration is available where a will exists but no executor can act. Leaving no will therefore does not provide a useful shortcut around estate administration.
Small estates have no universal exemption
NSW does not have a general rule that every estate below $50,000 avoids probate. Each asset holder applies its own requirements. The Law Society of NSW explains that small holdings may be released after production of the will, death certificate, identity documents and an indemnity. Ask each institution what it requires before promising beneficiaries a distribution date.
For example, CommBank’s published requirements currently call for a grant where solely held account balances with it exceed $100,000, or where it otherwise requests one. It also generally requires a grant to discharge a solely held home loan. This is a bank policy, not a statewide exemption, and a balance below that amount does not guarantee release.
An indemnity may require the recipient to reimburse the institution if another person establishes a claim. It protects the institution and should be understood before signing.
Joint ownership needs a closer look
Property held as joint tenants generally passes to the surviving joint tenant outside the will. Probate is not ordinarily needed for that transfer, although title records still need updating. Property owned solely by the deceased, or their share as a tenant in common, ordinarily requires a grant before it can be dealt with.
Joint bank accounts commonly continue in the survivor’s name, but account access and beneficial ownership are different questions. If an account was opened for convenience, or someone alleges that money was held on trust, investigate the arrangement before treating the entire balance as the survivor’s inheritance.
Changing ownership simply to avoid probate can also change who receives the asset. If a parent wants their share of a home to pass to children, joint tenancy with another person may defeat that intention. Check the title and obtain advice before transferring or restructuring ownership.
Why I stress superannuation nominations
When reviewing an estate plan, I want the superannuation nomination reviewed with the same care as the will. Naming your children in the will does not, by itself, direct the super fund to pay them. Ask your solicitor to check the actual nomination and explain how it works with your intended inheritance arrangements.
This is a substantial planning gap. ASIC’s 2025 review of 10 superannuation trustees found that 57% of living members in the reviewed funds had no beneficiary nomination as at 31 March 2024. These figures highlight why nomination checks belong in estate planning.
As ASIC Moneysmart explains, super does not automatically form part of your estate. A valid binding nomination can direct payment to eligible recipients. A non-binding nomination expresses a preference but leaves the trustee discretion under the applicable rules. Eligible direct recipients generally include a spouse, children, financial dependants and people in an interdependency relationship.
Check every fund separately. Confirm the nomination type, eligible recipients, percentages, execution requirements and whether the fund has received it. Many lapsing nominations expire after three years; non-lapsing arrangements may be available. Review nominations after marriage, separation, births, deaths or changing funds, and diarise any renewal date.
Nominating your executor can mean probate is needed
One option is to nominate your legal personal representative. In this context that means the executor or administrator acting for your estate. As the Law Society’s superannuation guidance explains, payment then becomes an estate asset distributed under the will or intestacy rules, subject to applicable law. It is not a personal gift to the executor.
This may suit someone who wants the will’s trusts, substitute beneficiaries or other distribution provisions to govern the money. However, the nomination must correctly identify that legal capacity using the fund’s requirements; simply entering the executor’s personal name can produce a different result.
Moneysmart’s claims guidance explains that payment to the estate can require probate or letters of administration. A direct payment to an eligible dependant may bypass the estate, but the fund must still assess the claim. The appropriate choice depends on the intended recipients, tax treatment and estate plan, rather than speed alone.
As a hypothetical example, a woman leaves a home owned as joint tenants with her spouse, a small personal bank balance and super nominated directly to her surviving spouse. If the bank and fund accept the required documents, a grant may be unnecessary. If she instead validly nominates her legal personal representative so that the super can fund trusts under her will, the fund may require a grant. The family’s overall wealth has not changed, but the route by which the benefit is paid has.
A real decision about nomination rules
In Hill v Zuda Pty Ltd in 2022, the High Court considered a self-managed superannuation fund whose deed directed a deceased member’s balance to the surviving member. The deceased’s daughter challenged the arrangement for non-compliance with regulation 6.17A of the superannuation regulations. The Court unanimously dismissed the appeal, holding that the regulation did not apply to SMSFs.
The decision arose from Western Australia, not a NSW probate dispute. Its practical lesson is that nomination rules cannot be assumed to be identical across all funds. An SMSF’s governing documents and applicable law need specific attention; the decision does not validate every SMSF nomination.
Insurance tax and claims still need attention
Life insurance held inside super generally forms part of the super death benefit. For cover held outside super, examine the policy owner, beneficiary provisions and insurer’s requirements. A policy payable to the estate can create a need for a grant even where other assets pass directly.
Eligibility to receive super and eligibility for tax-free treatment are different questions. The taxable components and recipient’s circumstances matter. NSW notional-estate provisions can also bring some assets outside the estate into family provision proceedings where the statutory conditions are met. Bypassing probate does not guarantee protection from claims.
Deciding whether to proceed without a grant
Start with an inventory showing ownership, value, debts and the release requirements for every asset. Keep the original will safe and retain copies of nominations, fund acknowledgements and institutional correspondence. If ownership is disputed or instructions conflict, resolve that uncertainty before releasing money.
Legal Aid NSW’s administration guidance emphasises protecting assets, paying debts and keeping estate property separate from personal funds. Those responsibilities remain relevant when a grant is unnecessary. Obtain advice about personal liability, claims and the protections available before distributing without probate.
Our wills and estates team can review the will, ownership arrangements and super nominations together, and identify whether a grant is needed. General information only; the appropriate approach depends on the estate and the rules of each asset holder.
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