Do I need a will in Australia?

A will is strongly recommended. If you die without one (intestate), your estate is distributed according to a strict statutory formula set by your state or territory. This formula may not reflect your wishes and can cause delays and costs for your family.

Can a family member challenge my will in Australia?

Yes. Under 'family provision' laws in each state, eligible persons — including spouses, children (including adult children), and sometimes dependants or former spouses — can apply to the court for a share or larger share of the estate if they have been left without adequate provision.

Is superannuation covered by my will in Australia?

Not automatically. Superannuation is held in trust and is generally not an asset of your estate. You must make a separate binding death benefit nomination with your super fund to direct who receives it. Otherwise, the trustee of the fund decides.

Wills and inheritance basics (Australian estate planning guide)

Plain-language guide · reviewed for general accuracy · Australia

Estate planning in Australia is governed by state and territory laws, but the principles are broadly similar across the country. Whether you are making a will, dealing with a loved one's estate, or concerned about a family provision claim, here is what you need to know.

1. Making a valid will

A will must be in writing, signed by you (the testator) in the presence of two witnesses, who must also sign in your presence. The witnesses should not be beneficiaries or married to beneficiaries, as this can void the gift to them. The will should name an executor — the person responsible for administering your estate — and specify how you want your assets distributed. You can include specific gifts, a residue clause for everything not specifically given, and guardianship directions for minor children. A will made in one Australian state is generally valid in all others, but it is best to update your will if you move interstate.

2. What happens if you die without a will (intestacy)

If you die intestate, your estate is distributed according to a statutory formula set by the succession legislation in your state. Typically, if you leave a spouse and no children, the spouse receives the whole estate. If you leave a spouse and children, the spouse receives a set amount (for example, the first $500,000 in NSW plus personal effects) and the remainder is shared between the spouse and children. If you leave no spouse or children, the estate goes to parents, then siblings, then more distant relatives in a defined order. If no eligible relatives survive, the estate passes to the state government (bona vacantia). Intestacy also means someone must apply to the court for letters of administration rather than probate — adding time and cost.

3. Family provision claims

In every Australian state, courts can override a will if an "eligible person" has been left without adequate provision. Eligible applicants typically include the spouse or de facto partner, children (including adult children), former spouses in certain circumstances, and dependants. The court considers factors such as the applicant's financial needs, the size of the estate, the relationship between the deceased and the applicant, and any contributions the applicant made. Family provision claims must be made within strict time limits — usually six to 12 months from the date of death, depending on the state. This is a key reason to seek legal advice when drafting a will, especially if you intend to exclude a family member.

Tip: superannuation is usually the second-largest asset after the family home. It does not automatically form part of your estate. Make a binding death benefit nomination with your super fund — and renew it every three years (for binding nominations) — or the trustee may decide who receives it.

4. Probate and estate administration

Probate is the court process of validating a will and confirming the executor's authority to deal with the estate. The executor applies to the Supreme Court of the relevant state, submitting the original will, an inventory of assets and liabilities, and an affidavit. The court grants a "grant of probate," which the executor then uses to collect assets, pay debts, and distribute the estate according to the will. Smaller estates may not require probate, especially if assets are jointly held or low in value — this threshold varies by institution and by asset type (for example, many banks will release up to $50,000 without probate). Estate administration can take six to 12 months or longer for complex estates.

5. Testamentary trusts and other planning tools

A will can create a testamentary trust — a trust established on death — which can provide tax advantages and asset protection for beneficiaries, particularly minor children or vulnerable adults. Testamentary trusts are increasingly common in Australian estate planning. Other key considerations include jointly held property (which usually passes automatically to the surviving joint owner), enduring powers of attorney (financial decisions while alive), and advance health directives.

Common questions

Do I really need a will in Australia?: Yes. Without a will, your assets are distributed under intestacy rules — which may not match your wishes. It also adds time, cost, and stress for your family.
Can my will be challenged after I die?: Yes. Eligible persons — spouse, children, dependants — can apply for family provision if they were left without adequate support. Good legal drafting can reduce, but not eliminate, this risk.
Does my will cover my superannuation?: Not automatically. Super is held in trust. You must make a binding death benefit nomination with the fund to control who receives it. Review this every three years.

Tell the assistant your state and what you are planning for — making a will, dealing with an estate, or a dispute — for a plain-language starting point.

This guide is general information about succession law in Australia and is not legal advice. Succession and estate laws vary by state and are subject to change. For your specific situation, consult a licensed estate planning lawyer or a trustee company.