Wills & Estates Planning FAQ

A will is a legal document that sets out how your assets are to be distributed after your death and who will administer your estate. In Australia, each state and territory has its own Succession Act or Wills Act governing validity.

A valid will must be in writing, signed by the testator, and witnessed by two independent witnesses in the presence of the testator and each other. The testator must have capacity and know and approve the contents.

An executor should be trustworthy, organised, and willing to take on administrative responsibility. Many people appoint a spouse, adult child, trusted friend, or a professional trustee. At least one Australian-resident executor is strongly recommended.

The executor locates the will, obtains probate if required, identifies and gathers assets, pays debts and taxes, and distributes the estate. They must act in the beneficiaries' interests and can be personally liable for errors.

Probate is the Supreme Court's formal recognition that a will is valid and that the executor has authority to administer the estate. It is usually required before banks, share registries, and land titles offices will deal with the executor.

Dying without a valid will is called "intestacy". The estate is distributed under a statutory formula in the relevant Succession Act, typically prioritising spouse and children. The outcome is often not what the deceased would have wanted.

Yes. Common challenges include lack of capacity, undue influence, fraud, or failure to comply with formal requirements. Eligible persons can also make a family provision claim for greater provision, even from a valid will.

A family provision claim is an application by an eligible person (usually a spouse, de facto partner, child, or dependent) for greater provision from an estate where adequate provision was not made for their maintenance, education, or advancement.

Eligibility is defined by each state's Succession Act and typically includes spouses, de facto partners, children (including adult children), former spouses, and some dependants or members of the household. Definitions vary by jurisdiction.

NSW: 12 months from death. Victoria: 6 months from grant of representation. Queensland: 9 months from death (notice within 6). Other states vary. Late applications require leave and hardship grounds.

A testamentary trust is a trust created in a will, which takes effect on death. It can provide tax benefits (children under 18 taxed at adult rates on trust income), asset protection from bankruptcy or family law claims, and flexibility for beneficiaries.

An enduring power of attorney authorises someone to manage your financial and legal affairs, continuing if you lose capacity. Each state has its own form and registration requirements. It is a core estate planning document.

An enduring guardian (or similarly named appointment) makes health, lifestyle, and accommodation decisions if you lose capacity. Some states separate financial and personal/medical decisions into distinct appointments.

An advance care directive records your wishes for future medical treatment, including refusal of life-prolonging measures. It is enforceable under state-specific legislation and supplements an enduring guardianship appointment.

Not automatically. Superannuation death benefits are usually paid by the fund trustee to dependants or the estate based on the fund's rules, any binding death benefit nomination, and trustee discretion.

A BDBN is a formal direction to the superannuation trustee to pay the death benefit to specified dependants or the estate. It must comply with the fund's rules and statutory formalities. Non-compliant nominations are non-binding.

Jointly owned property (joint tenancy), life insurance with a beneficiary nomination, and some superannuation pass outside the will. Assets in discretionary family trusts do not belong to the deceased and are not part of the estate.

Yes. Marriage, divorce, new relationships, children, and substantial changes in assets all affect your will. In most states marriage revokes a prior will unless made in contemplation; divorce revokes gifts to the former spouse.

No. Australia does not impose estate duty or inheritance tax. However, tax implications arise for superannuation death benefits, capital gains on inherited assets, and trust income post-death, which should be managed in planning.

A basic individual will by a solicitor typically costs $400-$900, a couple's pair $600-$1,400, and a more complex testamentary trust will $2,000-$5,000+. Full estate planning packages (wills, powers of attorney, nominations) often cost $1,500-$3,500 per couple.