Wills and Estate Planning in Australia: What You Need and How to Get It Right (2026)

Dying without a valid will (intestate) means your estate is distributed according to state succession laws, not your wishes:

• Intestacy rules vary by state: In NSW, if you die with a spouse/de facto and children, the spouse receives the personal effects, a statutory legacy ($575,000 in NSW as at 2024), and half the remainder - the rest goes to the children. If your estate is worth less than the statutory legacy, the children receive nothing. This may not be what you intended.
• De facto partners face additional risk: Despite legal recognition, de facto partners may need to apply to the court to establish their entitlement if there is no will - a costly and distressing process during an already difficult time.
• Guardianship of minor children: A will is the only legal document in which you can nominate a preferred guardian for your children. Without one, a court decides - without necessarily knowing your preferences.
• Business and property complications: Jointly owned assets (property, bank accounts) may pass by survivorship to the other owner regardless of a will. Assets in trusts, superannuation, and life insurance do not form part of your estate and are not covered by your will - they pass according to their own rules.
• Probate delays: Without a will, obtaining authority to deal with the deceased's estate (letters of administration) takes longer and costs more than obtaining probate from a valid will. The estate may be frozen for months.

For a will to be legally valid in Australia, it must meet specific formal requirements:

• In writing: The will must be a physical written document. Handwritten (holographic) wills are valid in most states but are more easily contested and should be avoided.
• Signed by the testator: You must sign the will (or direct someone to sign on your behalf in your presence if you are unable to do so).
• Witnessed: The signature must be witnessed by two adults who are present simultaneously and are not beneficiaries of the will (or married to a beneficiary). A beneficiary witnessing the will may invalidate their bequest.
• Mental capacity: You must have testamentary capacity - understanding what a will is, the nature of your assets, and who your natural heirs are. A will made when capacity was impaired can be contested.
• Where to store it: Keep your original will in a safe location (your solicitor's safe custody, a bank safe custody box, or with the Public Trustee) and tell your executor where it is. A will that cannot be found may be treated as if it does not exist.
• When to update: Review your will after every major life event - marriage (automatically revokes a will in most states), divorce, de facto relationship, having children, significant asset changes, or death of a named beneficiary or executor.

A will only covers part of your estate plan - these additional documents are equally important:

• Enduring Power of Attorney (EPOA): Appoints a person to make financial and legal decisions on your behalf if you lose mental capacity. 'Enduring' means it remains valid even if you become incapacitated. Without one, family members may need to apply to VCAT, NCAT, or the equivalent state tribunal to manage your affairs - a lengthy and expensive process.
• Enduring Guardian or Medical Power of Attorney: Appoints someone to make medical and lifestyle decisions (where you live, medical treatment) if you lose decision-making capacity. Different from a financial EPOA - both are usually needed.
• Advance Care Directive (Living Will): Documents your wishes about medical treatment - particularly end-of-life care - in advance. Reduces the burden on family and medical staff during a difficult time.
• Superannuation beneficiary nominations: Super does not form part of your estate and is not covered by your will. The trustee of your super fund has discretion over who receives your death benefit unless you have a valid binding death benefit nomination (BDBN). Most BDBNs expire every 3 years - check and renew yours. Non-lapsing BDBNs are available in some funds and SMSFs. Benefits paid to non-dependants (such as adult children) attract up to 17% tax on the taxable component.
• Life insurance beneficiary: Life insurance paid outside of super passes directly to the nominated beneficiary, also not through your estate. Keep your beneficiary nomination current and consistent with your overall estate plan.

A solicitor is the most reliable option for preparing a valid, professionally drafted will - particularly for anything beyond a simple estate. Solicitor fees vary from $200 to $500 for a basic will to $1,000 to $3,000 or more for complex estates involving trusts, business interests, blended families, or tax-sensitive bequests. The Public Trustee in each state also prepares wills, often at low or no cost, with the trade-off that they may expect to be appointed executor.

Online will services (Safewill, Willed, Gather My Life) provide legally drafted wills for $100 to $200 for straightforward situations. These are appropriate for simple estates with clear distribution. For anything involving a blended family, business assets, testamentary trusts, significant super, or relationship complexity, see a solicitor. A poorly drafted will can be as costly as no will - contested estates and litigation erode what is left.

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