Why the ATO May Ask for Probate Before Discussing a Deceased Estate

The ATO's Privacy Obligations

The ATO is bound by strict secrecy and privacy obligations under tax law and the Privacy Act 1988. Tax information includes income, deductions, refunds, debts, employer details, superannuation contributions and bank interest records — much of it more sensitive than a person's bank statements. The ATO cannot release that information to anyone who simply rings up claiming to be an executor.

What the ATO needs to see is evidence that the person it is dealing with has the legal authority to stand in the shoes of the deceased. The cleanest form of that evidence is a grant of probate or letters of administration, which the Supreme Court has issued only after testing the Will and the executor's identity.

What Information the ATO May Request

Before discussing a deceased person's affairs, the ATO will typically ask for:

• proof of the death — usually an official death certificate;
• proof of the executor's authority — a grant of probate or letters of administration, or alternatively the Will plus identification for smaller estates;
• identification of the executor themselves, including ATO proof-of-record-ownership questions; and
• where a tax agent is involved, evidence that the agent has been authorised to act for the estate.

How Executors Establish Authority

The first formal step in dealing with the ATO is usually the deceased estate notification, lodged through the ATO's online services. The notification informs the ATO of the death, links the deceased's records to the executor or tax agent, and triggers the ATO's deceased estate processes.

Once notified, the ATO will assess the documents provided and decide whether it can deal with the executor on the available evidence or whether it needs a grant of probate. Significant balances, complex refunds, ongoing audits and outstanding tax debts all increase the likelihood that probate will be required.

Probate vs Other Evidence of Authority

For modest estates, the ATO may accept:

• a certified copy of the Will naming the person as executor;
• the original death certificate; and
• identification of the executor and any tax agent acting.

For larger or more complex estates — particularly those with substantial refunds owing, outstanding debts, audits in progress, or competing claims — the ATO will usually insist on a sealed grant from the Supreme Court. The grant removes any doubt about who is entitled to deal with the deceased's affairs.

Situations Where Probate May Help

Even where probate is not strictly required by the ATO, a grant can make life significantly easier for executors who need to:

• recover a meaningful refund;
• negotiate payment of an outstanding tax debt;
• respond to an ATO audit of the deceased's affairs;
• receive distributions from a superannuation fund that the trustee has paid to the legal personal representative; or
• deal with overseas income, foreign assets, or trust distributions in the deceased's name.

Once the grant is in hand, the ATO recognises the executor without further argument and the conversation becomes much shorter.

Situations Where Probate May Not Be Required

Probate may not be required for the ATO where:

• the estate is small, with no outstanding debts and only a modest refund;
• no real estate, business interests or significant investments are involved; and
• the executor can produce the Will, death certificate and ATO proof-of-record-ownership evidence.

Even in these cases, executors should be mindful that other asset-holders — banks, share registries, super funds — may still require probate. It is rarely worthwhile to fight the ATO over a few hundred dollars of refund only to discover that probate is needed for a $40,000 bank balance the following week.

Difficulties Commonly Encountered

• Lost Will. Without the original Will, the ATO may decline to act until a Court order has been obtained admitting a copy or informal document.
• Outdated tax records. The deceased's last tax return may have been lodged years ago, with addresses, contact details and bank account information that are no longer current.
• Disputes between executors. Where multiple executors are appointed and disagree, the ATO will usually insist that all act together or that the Court resolve the dispute first.
• Overseas executors. Executors who live outside Australia often face additional verification steps and longer timeframes.
• Audits in progress. An open audit at the date of death does not stop on death; it carries on with the executor as the relevant taxpayer.

Steps Executors Can Take to Minimise Delays

1. Notify the ATO of the death promptly through the deceased estate notification process.
2. Apply for probate (where required) without delay, particularly where significant refunds, debts or audits are involved.
3. Engage a registered tax agent or accountant to deal directly with the ATO on the estate's behalf.
4. Obtain the deceased estate data package from the ATO to fill any gaps in the deceased's records.
5. Keep careful records of every interaction with the ATO, including dates, reference numbers and the name of the officer.

Documents to Gather Before Contacting the ATO

• original death certificate;
• original Will and any codicils;
• grant of probate or letters of administration (if available);
• executor's photographic identification (driver's licence or passport);
• deceased's tax file number;
• copies of the deceased's last few tax returns, notices of assessment and PAYG summaries (if available);
• recent bank and broker statements;
• superannuation fund correspondence and any binding nomination form;
• ATO correspondence relating to the deceased, including any audit notices.

When Lawyers and Accountants Should Become Involved

Most executors will benefit from involving both a lawyer and an accountant from the outset. The lawyer obtains probate, oversees administration, and protects the executor from personal liability. The accountant lodges the final return for the deceased, the estate's annual trust returns, and any objections or amendments needed. The two work together; cross-checking issues catches problems before they require ATO involvement.

Five Practical Tips for Dealing with the ATO After a Death

1. Lodge the deceased estate notification early. It triggers the ATO's deceased estate process and stops automated correspondence being sent to the deceased.
2. Engage a registered tax agent. Agents have established channels to the ATO and can resolve in hours what an executor may struggle with for weeks.
3. Obtain probate where there is any meaningful tax issue. The cost of a grant is almost always recovered in reduced delay and lower professional fees.
4. Centralise all ATO correspondence. Redirect mail and ensure every notice is captured — missing an ATO letter can lead to assessments by default or to lost objection rights.
5. Wait until tax is finalised before distributing. Once funds have left the estate, recovering them to meet an unexpected tax liability is difficult and may fall on the executor personally.

Related Reading

• Probate & Estate Administration
• Wills & Estate Planning
• Tax Returns for Deceased Estates: What Executors Need to Know

Frequently Asked Questions