How to make a will in Australia

Your estate is the property you own personally and solely at death: real estate in your sole name or held as tenants in common, bank accounts in your name, shares, vehicles, personal belongings and money owed to you. Debts and tax are paid out of it first, and beneficiaries receive what is left. If the estate is insolvent, beneficiaries receive nothing and creditors are paid in a statutory order.

Superannuation is not automatically part of that estate. Your super is held by a trustee, and where it goes on death is decided by the trustee under the fund's rules and superannuation law, not by your will, unless you direct it into your estate. The instrument that controls it is a death benefit nomination made to the fund. A binding nomination obliges the trustee to pay as you directed, provided it is valid and in favour of an eligible person. A non-binding nomination is only a guide the trustee may depart from. Binding nominations in many funds lapse after a set period, which is why people who made one when they joined a fund a decade ago are frequently no longer covered by it.

You can nominate your legal personal representative, which pushes the super into your estate and lets the will distribute it. That is often the cleanest approach where the will already deals with a blended family or with children who are still minors. It also has tax consequences: super paid to someone who is not a dependant for tax purposes is taxed differently from super paid to a spouse, and routing it through the estate does not avoid that. This is a question for advice rather than guesswork.

Jointly owned property is the other common surprise. Property held as joint tenants passes automatically to the surviving joint tenant and the will never touches it. Property held as tenants in common passes under the will as to your share only. Couples routinely do not know which of the two they have. It is recorded on the certificate of title, so check rather than assume.

Life insurance follows its own path. A policy held inside super is a super benefit and follows the nomination made to the fund. A policy held in your own name with a nominated beneficiary generally pays that person directly. A policy with no nomination generally pays into the estate and is then distributed by the will.

Assets held through a family trust or a company are not yours to give away either, because you do not own them — the trustee or the company does. What you can pass on is control: the shares in a trustee company, or the role of appointor under the trust deed. Doing that properly needs drafting that no supermarket will kit contains.

The practical consequence is that a will is one instrument among several, and the others often matter more. If the will says everything goes to your children equally, but the super nomination still names a former partner and the house is held as joint tenants with a new one, the will is governing a small fraction of what you actually own.

The formal requirements are set by state and territory succession legislation and are broadly consistent across Australia. The will must be in writing. You must sign it, or direct someone to sign it in your presence and at your direction. Two or more adult witnesses must be present at the same time, see you sign, and then sign themselves in your presence.

The most common defect is a beneficiary, or a beneficiary's spouse, acting as a witness. In most Australian jurisdictions this does not invalidate the will, but it puts the gift to that person at risk: the gift can fail unless the court is satisfied the will-maker knew and approved of it, or the other beneficiaries consent. Use witnesses with no interest in the estate whatsoever — a neighbour, a colleague, a pharmacist.

Sign every page, initial any alteration made before signing, and attach nothing with a staple or paper clip afterwards. Probate registries notice pin holes and staple marks and will ask what was attached and where it has gone. That single question can hold up a grant for months while an affidavit is prepared to explain it.

Do not write on the will after it is signed. Crossing out a beneficiary's name later does not revoke the gift, and it manufactures exactly the kind of ambiguity that produces litigation. Changes are made by a codicil executed with the same formalities, or more sensibly by making a fresh will that revokes the old one.

Marriage revokes an earlier will in every Australian jurisdiction unless the will was expressly made in contemplation of that marriage. Divorce generally revokes gifts to the former spouse and their appointment as executor, though the detail varies by state. Separation without divorce usually changes nothing at all, which means a will made during a marriage that has since broken down but never been formally ended may still leave everything to an estranged spouse.

Courts in every state and territory now have a dispensing power to admit a document that does not meet the formal requirements — an unwitnessed draft, in some reported cases a note written on a phone — where the court is satisfied the deceased intended it to operate as their will. It has rescued genuine cases. It is also contested, expensive and uncertain, and it is not a substitute for spending twenty minutes doing it properly.

Store the original where it can be retrieved and tell the executor exactly where that is. Options include the solicitor who prepared it, the state or territory public trustee, or a bank safe custody service. A copy alone is weak evidence: where the original cannot be found, most jurisdictions presume the will-maker destroyed it intending revocation, and the estate must persuade a court otherwise.

The executor proves the will, gathers in the assets, pays the debts and tax, and distributes what remains. It is administrative work carrying legal liability. It is a job, not an honour, and the person who would be most hurt by not being asked is frequently the worst choice.

Probate is a Supreme Court grant confirming the will is valid and that the executor may act on it. Whether it is needed depends on what the estate holds and who holds it: banks, share registries and land titles offices each set their own thresholds. A modest estate with a small bank balance and no real property often does not need a grant, while an estate holding property in the deceased's sole name almost always does. Each state and territory Supreme Court runs its own probate registry, and applications in Victoria, for example, are lodged through the court's online probate system.

Choose an executor likely to outlive you, capable of sustained paperwork, and acceptable to everyone who stands to inherit. Appointing one of three adult children as sole executor is a well-established way to start a dispute among people who previously got on. Two executors acting jointly can work, but every decision then requires both, and a deadlock has to be resolved by the court.

You can appoint a professional instead: a solicitor, a trustee company, or the state public trustee. They charge, usually as a percentage of the estate plus fees for the work, and the charge is not small. What you buy is neutrality and competence, which is worth a great deal in a contested or complicated estate and very little in a simple one.

Always name a substitute executor. Estates where the only named executor has died, lost capacity or renounced end up in an application for letters of administration with the will annexed, which is slower and costs more than a straightforward grant of probate.

The executor's exposure is real. Distributing before the period for family provision claims has expired, or before the deceased's final tax position is settled, can leave the executor personally liable to make good the shortfall. This is why careful executors publish a notice of intended distribution and wait out the statutory period even when they are confident no claim is coming.

Tell the person you have appointed them. An executor can renounce, and it is better to discover that now than for your family to discover it in the week after your funeral.

Family provision legislation operates in every state and territory. It allows a defined class of people to ask a court to order provision out of the estate on the ground that the will did not make adequate provision for their proper maintenance, education or advancement in life. The court is not asking what the deceased wanted; it is asking what a wise and just testator would have done.

Who is eligible varies significantly between jurisdictions. Spouses, de facto partners and children are eligible everywhere. Beyond that the categories diverge: some states include former spouses, grandchildren, stepchildren, members of the deceased's household and people in a close personal relationship with them. New South Wales has one of the broader eligibility lists in the country and, separately, a notional estate power that can reach back and claw in property the deceased transferred before death. No other state has an equivalent.

Time limits are short and differ by state, generally measured in months from the date of death or from the grant of probate. Missing the limit is usually fatal, although courts can extend time in limited circumstances and on evidence explaining the delay.

You cannot disinherit an eligible person simply by saying so. A clause explaining why you have left someone out does carry weight, because courts do consider the will-maker's stated reasons, but it does not remove the court's power to order provision.

What genuinely reduces risk: leaving something rather than nothing to an eligible person who might otherwise claim; recording your reasons in a signed statement kept with the will; making lifetime gifts well in advance of death, with care in New South Wales where the notional estate rules reach further; and holding assets in ways that keep them out of the estate, such as joint tenancies and binding super nominations. None of these is a guarantee, and several create capital gains, stamp duty or pension consequences, so take advice before restructuring anything.

The other line of attack is capacity or undue influence — an argument that the will-maker did not understand the nature of the document or was pressured into it. Where capacity is genuinely in question, a competent solicitor obtains a medical opinion at the time of signing and keeps a detailed file note. Contemporaneous evidence created on the day is worth far more than anything reconstructed years later.

A will kit bought from a newsagent is a valid will if it is executed correctly, and for a genuinely simple estate — one relationship, no children from a previous one, no business, no trust, everything to a spouse and then to the children — it can be adequate. Its failures are almost always execution failures and ambiguous wording rather than the format itself, which is precisely the part a kit cannot supervise.

The public trustee in each state and territory offers will-making, in several jurisdictions free or heavily subsidised for pensioners and older people. Queensland Public Trustee and NSW Trustee & Guardian both run such services. The usual trade-off is that the public trustee is appointed as executor and charges the estate for that work later, so the cost is deferred rather than avoided.

A solicitor who does estate work typically charges a few hundred dollars for a straightforward will. Blended families, business interests, self-managed super, property in more than one country, a beneficiary with a disability or an addiction, and any realistic expectation of a claim all put you well outside kit territory and into territory where the fee is trivial next to the exposure.

Do the inventory before the appointment: titles and how each is held, super balances and current nominations, insurance policies and their beneficiaries, loans, guarantees you have given, and business or trust interests. Half the value of the exercise comes from discovering that the super nomination lapsed years ago.

Make the enduring power of attorney and the health directive at the same sitting. A will operates only after death. An enduring power of attorney lets someone manage your finances if you lose capacity while alive, and an advance care directive or enduring guardianship appointment covers medical and lifestyle decisions. The names, forms and rules differ by state. Families are far more often derailed by the absence of these documents than by the absence of a will, because the crisis they answer arrives while everyone is still in the room arguing.

Review after every significant change: marriage, separation, divorce, a birth, a death, buying or selling property, starting or selling a business, or a major change in a beneficiary's circumstances. Absent those, a review every few years is enough.

If you die without a valid will you die intestate, and a statutory formula in your state or territory decides who takes what. The formulas are not intuitive. In most jurisdictions a surviving spouse does not automatically take the whole estate where there are children from another relationship, and a de facto partner may have to prove the relationship existed. Someone still has to apply to the court to be appointed administrator, which is slower, more expensive and more contentious than probate on a valid will.