Wills & Estates in Australia

Do I need a lawyer to make a will?

No — you are not legally required to use a lawyer. But a will has formal signing and witnessing requirements, and a will that is poorly drafted or wrongly executed can be invalid or open to challenge, which usually costs the estate far more than the will would have. Lawyers are especially worth it where there are blended families, business interests, or assets overseas. We can explain the requirements in your state or territory for free, and help you book a lawyer if you want one drafted properly.

What happens if someone dies without a will?

They die intestate, and the estate is distributed under the intestacy rules of the relevant State or Territory Act. Those rules set a fixed order — usually the spouse or de facto partner and children first — which may not be what the person would have wanted, and they cannot be varied just because the family agrees on something else. A close relative normally has to apply to the Supreme Court for letters of administration before they can deal with the assets. We can explain how intestacy works where the deceased lived.

Can I contest a will, and how long do I have?

Eligible people — generally spouses, de facto partners, children and certain dependants — can bring a family provision claim asking the court for adequate provision from the estate. A will can also be challenged on validity grounds such as lack of capacity, undue influence or fraud. The time limits are strict and differ by state: in NSW it is 12 months from the date of death (Legal Aid NSW explains the process), while in Queensland you must notify the executor within 6 months and file within 9 months. Because the deadlines are short, it is worth getting advice quickly.

What is probate, and do I always need it?

Probate is a Supreme Court grant confirming the will is valid and that the executor has authority to administer the estate. Whether you need it depends on the size and type of the assets — many banks and share registries require a grant before releasing funds, while small estates or assets held jointly may not need one at all. Most uncontested applications are now lodged online, usually after publishing a notice of intended application. The Supreme Court of NSW guide to applying for probate sets out the NSW steps; we can explain whether a grant is likely to be needed in your situation.

What happens to superannuation and jointly owned property?

These often pass outside the will, which surprises a lot of people. Property held as joint tenants usually passes automatically to the surviving owner. Superannuation death benefits are generally paid by the fund's trustee under a binding death benefit nomination, or to dependants or the estate, rather than being controlled by the will — and there can be tax consequences. The ATO explains how superannuation death benefits are taxed. Because of this, estate planning needs to deal with super and joint assets separately from the will.

How does Legal Hotline help with wills and estates?

We give free 24/7 legal information tailored to your state or territory — covering valid wills, probate and estate administration, intestacy, and contesting a will — so you understand your rights, your obligations and the relevant deadlines straight away. That is information, not advice on your own facts. When you want advice or someone to act for you, we can help you book a fixed-fee consultation with an admitted Australian lawyer. No appointment is needed to get the information.