Wills, probate and estates: choose your next step

Which task needs attention?

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Several routes may apply to one estate. The grant, a dispute and a super claim can require separate steps.

Making or reviewing a will

A will deals with property after death. It does not itself appoint someone to manage your finances or health decisions while you are alive. ASIC Moneysmart’s estate-planning guide explains how a will, super nominations and local decision-making documents fit together.

Prepare a list of what you own, how it is owned, who depends on you and who you want to benefit. Include businesses, trusts and overseas assets for advice; control of an asset does not necessarily mean it is yours to leave by will. Discuss substitute executors and beneficiaries as well as your first choices.

Signing, witnessing, age and capacity requirements need local checking. For example, Queensland sections 9–11 and 18 contain exceptions and a court process for some informal documents. They do not make every unsigned message or expression of wishes an effective will. Get advice before signing if there is pressure, uncertainty about understanding or communication, or an unusual signing arrangement.

Review the documents after marriage, separation or divorce, a birth, a death or a major asset change. These events do not all have the same legal effect, and divorce does not universally revoke an entire will. Store the original securely and tell the executor where to find it.

Probate or letters of administration?

A court grant identifies the person authorised to administer the estate under that grant. Victoria and Tasmania distinguish these ordinary routes. The right applicant and evidence depend on local rules and the will.

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Not every estate needs a grant. A partial intestacy, missing original, disputed will or earlier grant may require a different or additional process. One Australian grant does not necessarily settle assets in every state or overseas.

Check ownership before treating an asset as estate property

The NSW court guide and WA court guide distinguish property held as joint tenants from a share held as tenants in common. Joint tenancy with a surviving owner can pass by survivorship; a tenant-in-common share can form part of the estate. Check the title and the institution’s requirements rather than relying on “jointly owned”.

Ask banks, share registries and other asset holders whether they need a grant and what documents they require. There is no single estate-value threshold in this guide. If assets are in more than one jurisdiction, ask whether another grant or a reseal is needed.

For super, ask the fund about its governing rules, any valid nomination and the claim procedure. ASIC’s nomination guide distinguishes lapsing, non-lapsing, reversionary and non-binding arrangements. Do not assume every nomination expires after three years or that the will controls payment. Federal superannuation rules and the fund’s circumstances matter.

The super death-benefit checklist explains what the fund may request and how to keep a record of the claim. Ask for expected timing and outstanding requirements; a payment date cannot be guaranteed.

The ATO’s deceased-estate guidance confirms there are no Australian inheritance or estate taxes, but inherited assets, estate income and super benefits can still have tax consequences. Obtain advice before final distribution where tax or liabilities remain unresolved.

Inheritance concerns need the correct claim and clock

If there is no effective will, local intestacy law determines entitlement. Do not assume a spouse receives everything, or that a family agreement automatically changes the legal outcome. Obtain advice about any proposed different distribution and its effects on other people and tax.

A validity dispute asks whether a document should operate as the will. A family-provision claim asks for provision for an eligible person, even where the will is valid; such a claim can also concern an intestate estate. Legal Aid NSW explains the distinction and factors for its jurisdiction. Disappointment with a gift does not by itself establish eligibility or success.

Record the date of death, grant date, any notice of intended distribution, and all communications with the executor. Different claims have different rules. Do not wait for probate before obtaining advice, or assume a caveat automatically protects a family-provision claim.

Queensland illustrates why a single deadline is unsafe: section 41(8) ordinarily requires family-provision proceedings within nine months after death unless the court otherwise directs. Section 44 separately protects some proper distributions after six months without notice of a claim or intended claim. These are different rules; waiting until nine months can be risky. Notice, commencement and service need individual checking.

There is no universal six-month deadline to obtain probate or fixed period after which an executor can safely distribute every Australian estate. Local notice rules, claims, liabilities and tax can change the position. A booking or general-information call does not stop a deadline.

Find the court process for the relevant state or territory

Use these official starting points for forms, notices, fees and current processing information. Check where the person lived and where assets are held; the beneficiary’s address alone does not decide the correct court.

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These links identify local processes, not identical rules across Australia. The linked court guides do not replace advice about a contested estate, an overseas asset or the correct applicant.

Executor preparation checklist

1. Locate the original will, codicils and any relevant earlier wills. Record where each was found. Preserve the original intact; do not remove staples or attach other papers to it.
2. Record the date of death, the deceased’s home address and all asset locations. Obtain the death certificate and note any existing grant, court proceeding or proposed distribution.
3. List assets, approximate values and debts. Identify sole ownership, joint tenancy, tenants in common, trusts or companies; keep supporting title and account records.
4. Contact the relevant institutions about release requirements, insurance and ongoing expenses. Keep a dated log and preserve records of payments and decisions.
5. Check the grant route and the person entitled to apply. Use the local court guide for current notices, forms, fees and filing steps; obtain advice if the will or appointment is unclear.
6. Keep super nominations and death-benefit correspondence separately from the estate asset list until the payment route is established. Ask about outstanding tax and liabilities before distribution.
7. Prepare questions about claims, executor duties, costs and responsibility for each next step. Seek prompt advice about a dispute or deadline; do not distribute simply because a generic waiting period has elapsed.

The WA court’s preparation guidance and NSW probate guide inform these document prompts. This checklist helps prepare for the estate’s actual process; it does not authorise a distribution or file an application.

Official help and free legal information

Official information can help you prepare, but free wills advice or drafting is not available from every legal-aid service. Check each service’s scope and eligibility.

Common questions about wills, probate and estates

Related legal information