Wills & Estates FAQ

If someone dies intestate, their estate is distributed under the intestacy rules of the state where they lived. These rules prioritise spouses and children in a fixed order, and do not consider the deceased's actual wishes. The Supreme Court appoints an administrator instead of an executor.

Anyone over 18 with testamentary capacity can make a will. Capacity means the person understands the nature of the document, the extent of their property, the people who might expect to benefit, and is not affected by disorder of mind. Minors can make wills in limited circumstances with court authorisation.

A will must be in writing, signed by the testator, and witnessed by two independent adults who sign in the testator's presence. Each state has a dispensing power that allows the court to admit informal documents if the deceased intended them to be a will.

Yes, but home-made wills are a leading cause of estate litigation. Common mistakes include unclear language, missing witnesses, failing to revoke earlier wills, and leaving out residuary clauses. The cost of a simple professional will is usually far less than the cost of fixing an invalid one.

Probate is a Supreme Court order confirming a will is valid and authorising the executor to administer the estate. It is typically required when the estate holds real property or substantial assets held by institutions that demand probate before releasing funds.

An uncontested grant of probate typically takes 4-8 weeks from filing once the advertising period has passed. Estates with missing documents, overseas assets, or disputes can take considerably longer. Each state has its own Supreme Court probate registry with slightly different practices.

An executor collects the deceased's assets, pays debts and taxes, applies for probate where needed, and distributes the estate to beneficiaries under the will. They owe fiduciary duties to beneficiaries and can be personally liable for improper administration.

Yes. A beneficiary can apply to the Supreme Court to remove an executor for misconduct, incapacity, or failure to administer the estate properly. The court's overriding concern is the due and proper administration of the estate, not punishment of the executor.

A family provision claim is an application by an eligible person (such as a spouse, child, or dependant) for a larger share of a deceased estate on the basis that the will did not make adequate provision for their proper maintenance and support.

Eligibility varies by state but typically includes spouses, de facto partners, children (including adult children and stepchildren in some states), former spouses, and people who were dependent on the deceased. The categories are narrower in Victoria than in NSW.

Time limits for family provision claims vary by state: 12 months from death in NSW, 6 months from grant of probate in Victoria, and 9 months from death in Queensland. Extensions are sometimes possible but should not be relied on. Challenges to validity have different rules.

A testamentary trust is a trust created by a will that holds assets for beneficiaries after death. Common uses include protecting minors or vulnerable beneficiaries, tax planning for income splitting with children, and protecting assets from beneficiary bankruptcies or relationship breakdowns.

Yes, in most states marriage automatically revokes an existing will unless the will was expressly made in contemplation of that marriage. Divorce typically revokes gifts to and the appointment of a former spouse but does not revoke the entire will.

An enduring power of attorney is a document authorising another person to make financial decisions on your behalf, continuing to operate after you lose capacity. It is not a will — it operates during your lifetime and ends at death. Each state has its own form and requirements.

An advance care directive (sometimes called a living will) records your wishes about medical treatment if you become unable to communicate. It often appoints a substitute decision-maker for health decisions. Terminology and form vary by state.

Superannuation, jointly owned property, life insurance with a nominated beneficiary, and assets held in a trust or company typically do not pass under a will. These are dealt with by their own rules and should be reviewed together with the will as part of estate planning.

Generally no — superannuation is paid at the trustee's discretion unless there is a valid binding death benefit nomination. Some funds allow nominations to the estate, which then allows the super to be distributed under the will. Tax treatment depends on the recipient.

Australia has no inheritance or estate tax. However, specific tax issues can arise, including capital gains tax on inherited assets sold by the estate or beneficiaries, and income tax on superannuation death benefits paid to non-dependants.

Not by the deceased, but beneficiaries can enter a deed of family arrangement to vary how the estate is distributed, provided all affected beneficiaries agree. The Supreme Court can also rectify a will where it does not reflect the testator's actual intentions.

A simple will from a solicitor typically costs $300-$800. Complex wills involving testamentary trusts, blended families, or business interests range from $1,500 to several thousand dollars. Free wills are sometimes offered through public trustees or charity campaigns.