Probate is usually described as something an estate has to go through, a toll gate between a death and the money. It is not that. It is a court order confirming that a document is the deceased’s last valid will and that the executor named in it has authority to act.
Whether a given estate needs probate in Queensland is not a question the legislation answers directly. It is answered asset by asset, by the organisations holding the deceased’s property, and they do not decide it on the same basis. Two statutory dollar thresholds bear on the answer, and both are widely misread.
What a grant of representation actually is
Queensland law does not use “probate” as the umbrella term. Section 5 of the Succession Act 1981 (Qld) defines a grant as a grant of probate of the will or letters of administration of the estate, and it also takes in the grant of an order to administer and the filing of an election to administer.
Probate is for an estate with a valid will and an executor who can act. Letters of administration with the will cover a will with no available executor. Letters of administration apply where there is no will. An order to administer and an election to administer are the Public Trustee’s routes. Each is made by, or filed in, the Supreme Court of Queensland, which has jurisdiction to grant and revoke probate and letters of administration under section 6 of the Act.
A grant does not make a will valid. Validity turns on how the will was made: s 10 requires writing, signed by the testator intending to execute it, before two or more witnesses present at the same time. The grant is proof, and protection: an institution handing over assets on a court order is dealing with someone the court has said is entitled to receive them.
Why the law does not say when probate is required
Nobody can answer “is probate required” in the abstract, because the executor’s authority does not come from the grant. Under s 45(1), property the deceased held for an interest that does not cease on death, other than property held as trustee, vests in the executor on death, “notwithstanding any testamentary disposition”. Where no executor is able and willing to act it vests in the Public Trustee instead, and an administrator appointed later takes a title relating back to the death under s 45(4). Either way, the vesting does not wait on a court order.
The executor already holds the estate. What the executor lacks, until a grant issues, is a document that proves it to a stranger. The Act is candid about the consequence: s 45(7) preserves the operation of any other Act allowing a person to be registered as entitled to land after a death “notwithstanding that there has been no grant”. So the real question is not whether the law requires probate, but whether each organisation holding an asset will deal with you without it.
Working it through asset by asset
List every asset and ask what its holder requires.
| Asset | Usual position | What decides it |
|---|---|---|
| Home held as joint tenants | Passes to the survivor | Survivorship. The death is recorded with the Titles Registry |
| Home in a sole name or as tenants in common | Often a grant, but not always | The registrar’s powers under the Land Title Act 1994 (Qld) |
| Joint bank account | The bank usually pays the survivor | The account terms, though beneficial ownership can still be disputed |
| Account or shares in a sole name | Depends on the value | The institution’s own policy. There is no statutory figure |
| Superannuation | Often never an estate asset | The fund trustee, under the fund’s rules rather than the will |
The first row is a common source of error. Families routinely believe the home was held as joint tenants because both names were on it. Under s 56(2) of the Land Title Act 1994 (Qld), where a transfer to co-owners does not say how they hold, the registrar must register them as tenants in common. A joint tenancy can also be severed later by one owner alone, by registering a transfer: s 59(1) and (3). Check the title, not memory.
Outside land, almost nothing is governed by a fixed rule. No Queensland statute tells a bank the figure at which it must, or must not, release funds without a grant. A bank asking for one is managing its own risk of paying the wrong person, so ask each holder in writing what it requires. Superannuation is usually paid under the fund’s rules rather than under the will, and forms part of the estate only if the trustee pays it to the personal representative.
Queensland land: two ways a grant can be avoided
Land is usually the asset that forces the issue. The first alternative is section 111, under which a person may apply to be registered as personal representative of a deceased registered proprietor. The registrar may do that without a Queensland grant in two situations. Where the proprietor left a will, it is enough that the applicant is or is entitled to be the personal representative, or would in the registrar’s view succeed in an application for a grant. Where the proprietor died without a will, three things must line up: no letters of administration granted in Queensland within 6 months after the death, a registrar satisfied the applicant would succeed, and a gross Queensland estate at the date of death of no more than the amount prescribed by regulation or, if none is prescribed, $300,000. The Land Title Regulation 2022 (Qld) prescribes no amount, so as at August 2026 the ceiling is $300,000. A person registered this way has the same rights, powers and liabilities as if a grant had been made.
The second is s 112. A person beneficially entitled under a will to a lot can be registered as proprietor directly, if the person who is or is entitled to be the personal representative consents in writing and the registrar is satisfied of the entitlement. Where a will leaves the house to one adult child, that can be the answer.
Both provisions say the registrar may register, not must, and the $300,000 ceiling attaches only to the no-will limb.
The $150,000 election to administer
The second threshold sits in the Public Trustee Act 1978 (Qld). Under s 30(1), where the gross value of the Queensland property that would pass to the personal representative is estimated by the Public Trustee at not more than $150,000, and no grant of administration is in force, the Public Trustee may file an election to administer in the court instead of obtaining an order to administer. That figure sits in the Act itself rather than in a regulation, and is current as at August 2026.
It is not a small estate exemption a family can invoke. It operates only “in all cases where the public trustee is entitled to obtain an order to administer”, and s 29(1) confines those cases to intestacy, the Public Trustee being appointed executor, renunciation or death of the appointed executors, no willing and capable executor resident in Queensland, nobody applying for a grant within 3 months of the death, or property at risk of waste. The election is a route into Public Trustee administration, not a way for a family executor to skip the court.
If there is no will, or the will is informal
Intestacy is broader than it sounds. Under the Succession Act 1981 (Qld) a person is intestate if they leave no will, and also if they leave a will that does not effectively dispose of all their property. A will that gives away the house and says nothing about the rest produces a partial intestacy.
Where there is no will, letters of administration follow the order of priority in rule 610 of the Uniform Civil Procedure Rules 1999 (Qld): surviving spouse, then children, then grandchildren, then parents, then siblings, and on to anyone else the court appoints. An applicant must prove that each person ahead of them is not entitled, through death, incapacity or renunciation. Where there is a will but no executor able to act, rule 603 sets a different ladder.
If the will is informal, an unsigned draft, an unwitnessed page or a file on a phone, the court cannot be avoided. Section 18 of the Succession Act 1981 (Qld) allows the court to declare that such a document forms a will, but only if satisfied the deceased intended it to. That is an application, not a formality.
Applying, and the timing that actually matters
An application starts before anything is filed. Rule 598 of the Uniform Civil Procedure Rules 1999 (Qld) requires notice of intention to apply for a grant to be given at least 14 days before filing, and a copy given to the Public Trustee at least 7 days before. The court may dispense with the 14-day notice where urgent circumstances justify making a grant without it. Rule 599 sets out what the notice must contain and requires it to be published in a publication approved by the Chief Justice under a practice direction.
There is no statutory deadline for applying. The deadlines that bite come later, when money is paid out. A personal representative must distribute “as soon as may be” under s 52(1)(d), and the Act preserves the old rule of practice known as the executor’s year. Against that sits s 44(3), which protects a personal representative from a family provision action over a distribution properly made no earlier than 6 months after the death without notice of a claim, or no earlier than 9 months where notice has been received. That second limb carries an express exception: the protection is lost if the personal representative receives written notice that the application has been commenced, or is served with a copy of it. The claim itself must be brought within 9 months of the death unless the court directs otherwise, under s 41(8), which also confirms the court can hear one even though no grant has been made.
Published 3 August 2026.
Where this leaves you
The answer to “do we need probate” cannot come from the size of the estate alone. It comes from a short list: what the assets are, whose names are on them, how any co-owned land is held on the title, and what each institution says it needs. Most of that can be settled with a title search and a few written enquiries. Before anything is paid out, confirm from the register how the property is held, and note the date of death, because an executor’s protection when distributing runs from that date.
Related reading
- Do I need a will? What happens in Queensland if you die without one
- Estate administration
- How Fraser Lawyers helps with wills and estates
- Contact Fraser Lawyers
Need advice? Whether an estate needs a grant usually becomes clear once someone has looked at the title, the accounts and the will together. If you are administering an estate in Queensland, contact Fraser Lawyers to understand your position and where you stand, with no obligation. |
This article is general information only and is not legal advice. Queensland law and the figures referred to can change, and every situation turns on its own facts. Contact Fraser Lawyers for advice specific to your circumstances.
If you would like to discuss your matter, you can book a consultation or call (07) 5554 6116.
