Australian Succession Law: Wills, Intestacy, Probate, and the Administration of Estates

Australian Succession Law: Wills, Intestacy, Probate, and the Administration of Estates

Introduction

Succession law governs what happens to a person’s property, legal interests, and financial obligations after death. It determines how a valid will is made and interpreted, who inherits when someone dies without a will, how an executor obtains authority to administer an estate, and how assets are collected, protected, distributed, and accounted for. It also provides mechanisms for resolving disputes concerning testamentary capacity, undue influence, family provision, the validity of wills, and the conduct of estate administrators.

In Australia, succession law is not contained in one comprehensive national statute. It is principally regulated by the states and territories, each of which has legislation governing wills, intestacy, probate, estate administration, and family provision claims. Although the jurisdictions share many legal principles, differences in statutory language, time limits, eligible claimants, court procedures, and administrative requirements can have important practical consequences.

The distinction between the federal and state dimensions of Australian law is particularly important. The Commonwealth has legislative powers in areas such as taxation and superannuation regulation, but the creation and administration of wills and estates remain predominantly matters of state and territory law. Consequently, the applicable rules will generally depend on the jurisdiction with which the deceased person’s estate, property, and legal affairs are connected.

This article examines the principal features of Australian succession law, including testamentary freedom, the formal requirements for wills, intestate succession, probate and letters of administration, executors’ and administrators’ duties, estate debts, family provision claims, and disputes concerning inheritance. It also considers the treatment of jointly owned property, superannuation, trusts, and assets situated outside Australia.

1. The Legal Framework of Succession in Australia

1.1 State and territory jurisdiction

Australian succession law is primarily governed by state and territory legislation. Each jurisdiction has its own rules concerning the execution and revocation of wills, testamentary capacity, intestate succession, probate procedure, estate administration, and claims by eligible family members or dependants.

The principal statutes include:

Jurisdiction	Principal succession legislation
New South Wales	Succession Act 2006; Probate and Administration Act 1898
Victoria	Wills Act 1997; Administration and Probate Act 1958
Queensland	Succession Act 1981
South Australia	Wills Act 1936; Succession Act 2023; Administration and Probate Act 1919
Western Australia	Wills Act 1970; Administration Act 1903
Tasmania	Wills Act 2008; Administration and Probate Act 1935
Australian Capital Territory	Wills Act 1968; Administration and Probate Act 1929
Northern Territory	Wills Act 2000; Administration and Probate Act 1969

These statutes should not be treated as interchangeable. For example, legislation may differ in its requirements for informal wills, the order in which relatives inherit on intestacy, the classes of people entitled to bring family provision claims, and the period within which a claim must be commenced.

South Australia illustrates the importance of checking legislative changes. Its Succession Act 2023 introduced a modernised statutory framework for intestate distribution, with provisions that differ in important respects from older rules applied elsewhere. The applicable statutory version and the date of death can therefore be decisive.

1.2 The role of the Supreme Courts

The Supreme Court of each state or territory exercises jurisdiction over grants of probate and administration. Probate registries process applications, examine supporting documents, and issue grants where the legal requirements are satisfied. Contested matters, including disputes over the validity of a will and challenges to the conduct of personal representatives, may require judicial determination.

The court’s role is not simply administrative. It supervises the legal authority under which estates are administered and can intervene where there are disputes, suspected wrongdoing, competing applications, or risks to estate property.

1.3 Common law and equitable principles

Succession legislation operates alongside common law and equitable doctrines. These include the principles governing testamentary capacity, knowledge and approval of a will, undue influence, construction of testamentary instruments, fiduciary obligations, tracing of assets, and remedies for breach of trust.

The resulting system combines statutory rules with judicial interpretation. A will may satisfy formal execution requirements yet still be challenged because the testator lacked capacity, did not understand or approve its contents, or was subjected to legally recognised coercion.

2. Testamentary Freedom and the Nature of a Will

A will is a legal instrument through which a person, known as the testator, expresses how their estate is to be dealt with after death. It may appoint an executor, identify beneficiaries, make specific gifts, distribute the residue of the estate, establish testamentary trusts, and provide for the management of assets intended for children or other beneficiaries who should not receive them immediately.

Australian law generally recognises testamentary freedom: a person may decide who should inherit their property and in what proportions. A testator may leave property to relatives, friends, charitable organisations, or other lawful beneficiaries. There is no general rule requiring a person to distribute their estate equally among their children or to leave a particular share to every family member.

However, testamentary freedom is not absolute. Family provision legislation in each jurisdiction allows certain eligible people to seek provision from an estate where the will, or the operation of intestacy rules, has failed to make adequate provision for their proper maintenance and support. The availability and scope of such claims depend on the applicable statute.

A will also cannot necessarily control every asset associated with the deceased. Property held jointly with a right of survivorship, assets held by a trust, and superannuation death benefits may pass under arrangements that operate independently of the will.

A carefully prepared estate plan therefore requires more than drafting a document that distributes property. It requires identifying which assets form part of the estate, which pass through separate legal mechanisms, and whether the proposed distribution is likely to give rise to disputes or statutory claims.

3. Making a Valid Will

3.1 Formal requirements

Although the precise statutory provisions differ, a conventional Australian will generally must:

1. Be in writing.
2. Be signed by the testator, or by another person in the testator’s presence and at their direction where permitted.
3. Be signed or acknowledged by the testator in the presence of the required witnesses.
4. Be attested by the witnesses in accordance with the applicable legislation.

Two witnesses are ordinarily required. In many jurisdictions, the witnesses must be present together when the testator signs or acknowledges the signature, although the exact statutory formulation should be checked.

A beneficiary should generally not act as a witness. In some jurisdictions, a gift to a person who witnesses the will may be invalid or affected by statutory restrictions, even where the remainder of the will remains valid. The precise consequences depend on the applicable legislation and any statutory exceptions.

The formalities are intended to provide reliable evidence that the document represents the testator’s final testamentary intentions. They also reduce the risk of forgery, substitution, accidental execution, and disputes about whether the document was intended to operate as a will.

3.2 Testamentary capacity

A person must have testamentary capacity when making a will. Capacity is a legal question concerning the person’s ability to understand the nature and effect of the testamentary act, rather than a simple medical diagnosis or assessment of general intelligence.

The traditional common law approach is associated with the English decision in Banks v Goodfellow (1870) LR 5 QB 549, which has been influential in Australian succession law. The test requires consideration of whether the testator understood:

• the nature and effect of making a will;
• the general extent of the property being disposed of;
• the claims of people who might reasonably be expected to be considered; and
• whether any mental disorder or delusion affected the dispositions made.

Capacity is assessed at the time the will is executed. A person may have a medical condition, cognitive impairment, or fluctuating mental capacity and nevertheless possess the required testamentary capacity at the relevant moment. Conversely, a person who appears articulate and physically independent may lack capacity in relation to a complex testamentary decision.

The complexity of the will is relevant. A straightforward disposition may require less cognitive effort than a document involving numerous beneficiaries, business interests, trusts, competing family claims, or complicated conditions.

Where capacity may later be disputed, contemporaneous evidence can be important. This may include medical assessments, solicitor’s attendance notes, records of instructions, and evidence about the testator’s understanding of the document.

3.3 Knowledge and approval

Testamentary capacity is distinct from knowledge and approval. A testator must know and approve the contents of the will. It is not sufficient that the person possessed the general mental ability to make a will if they did not understand or approve the document actually executed.

Ordinarily, due execution by a capable testator provides evidence of knowledge and approval. However, suspicious circumstances may require closer examination. Examples include a beneficiary arranging the will, participating substantially in its preparation, or receiving an unexpectedly large benefit under circumstances that raise questions about the testator’s independent decision-making.

The person seeking probate may then need to provide additional evidence that the will genuinely reflected the testator’s intentions. The analysis is fact-sensitive and does not mean that every instance of family assistance invalidates a will.

3.4 Undue influence, fraud, and coercion

A will may be challenged where the testator’s freedom of decision was improperly overcome. Probate undue influence is generally concerned with coercion that causes the will to express another person’s wishes rather than the testator’s independent intentions.

This is different from ordinary persuasion, emotional influence, or the fact that a testator relied on another person for assistance. Family members may discuss inheritance, express preferences, or help arrange professional advice without necessarily committing undue influence.

Fraud may also invalidate a testamentary disposition. For example, a person might deceive the testator about the identity or conduct of a proposed beneficiary, or arrange for a document to be executed on the basis of false representations.

The legal questions are distinct: lack of capacity, absence of knowledge and approval, undue influence, fraud, and defective execution may arise together, but each has its own evidentiary and doctrinal requirements. The Victorian Law Reform Commission’s analysis of undue influence and suspicious circumstances illustrates the complexity of these challenges. Victorian Law Reform Commission+1

3.5 Informal wills and defective execution

Not every document that fails to satisfy conventional execution requirements is necessarily incapable of operating as a will. Several Australian jurisdictions have statutory provisions empowering a court to recognise an informal document where the evidence establishes that the deceased intended it to operate as their will, an alteration to a will, or a revocation.

The precise test differs between jurisdictions. Courts may consider the document’s form, the circumstances in which it was created, the testator’s statements, and whether the document represents a final testamentary intention rather than a draft or expression of wishes.

An unsigned note, an electronic document, or a document prepared shortly before death may therefore raise questions that cannot be answered simply by looking for two witness signatures. Recognition is not automatic: the court must be satisfied that the statutory requirements for dispensing with formalities have been met.

3.6 Electronic wills and remote witnessing

The use of electronic documents and remote witnessing has developed through jurisdiction-specific legislation and temporary or continuing statutory arrangements. There is no safe assumption that a will executed electronically or witnessed through a video connection will be valid throughout Australia.

A person making a will must check the law of the relevant jurisdiction at the time of execution. Electronic signature legislation should not automatically be assumed to validate a will, because wills may be subject to specific statutory rules that displace or modify general electronic transaction requirements.

3.7 Revocation and alteration

A will may be revoked by making a later valid will, executing a formal instrument of revocation, or performing another act recognised by the applicable legislation. Destruction of a will may revoke it where the testator acts with the required intention and the statutory conditions are satisfied.

Marriage and divorce can also affect a will, but the consequences vary. In many jurisdictions, marriage revokes an earlier will unless an exception applies, such as a will made in contemplation of that marriage. Divorce commonly revokes gifts to a former spouse and appointments of that person as executor, subject to statutory exceptions. Separation alone does not necessarily have the same effect as divorce.

A codicil is a testamentary document that amends or supplements an existing will. It must comply with the relevant execution requirements. Where substantial changes are necessary, preparing a new will may reduce uncertainty about which provisions remain operative.

4. The Structure and Interpretation of a Will

A well-constructed will generally identifies the testator, revokes earlier wills, appoints one or more executors, deals with specific gifts, provides for the residue of the estate, and includes provisions for contingencies.

4.1 Appointment of executors

The executor is the person appointed to administer the estate. A testator may appoint an individual, more than one individual, or an appropriate professional or public trustee organisation where permitted.

The choice matters because the executor may need to identify assets, obtain valuations, communicate with beneficiaries, deal with creditors, arrange property sales, complete tax obligations, and manage disputes. An executor should be willing and capable of undertaking these responsibilities.

A will should also consider what happens if the first-named executor dies before the testator, declines the appointment, or is unable to act. A substitute executor can reduce the risk of an unnecessary application for administration.

4.2 Specific gifts and the residuary estate

A specific gift identifies particular property, such as a house, a vehicle, jewellery, or a defined sum of money. A general legacy gives a beneficiary a specified amount without necessarily identifying a particular asset from which it must be paid.

The residuary estate consists of what remains after expenses, liabilities, and prior testamentary gifts have been dealt with. A residuary clause is essential because it provides for assets not otherwise specifically distributed and can reduce the likelihood of partial intestacy.

A gift may fail if the property no longer belongs to the testator at death. This is commonly described as ademption. For example, a gift of a particular house may fail if the testator sold it before death, although the consequences depend on the terms of the will and applicable law.

4.3 Beneficiary survival and lapse

A beneficiary may die before the testator, creating a question about whether the gift lapses or passes to another person. Statutes in some jurisdictions provide exceptions for gifts to certain relatives, allowing the deceased beneficiary’s descendants to take in their place.

A will can reduce uncertainty by specifying what should happen if a beneficiary dies first, disclaims a gift, or cannot legally receive it.

4.4 Construction of testamentary language

Courts interpret wills to determine the testator’s intention from the language used, read in the context of the document as a whole and the admissible surrounding circumstances. The court does not simply substitute what it considers fair or sensible for the words chosen by the testator.

Ambiguous descriptions of beneficiaries, inconsistent clauses, uncertain property references, and poorly drafted conditions can create litigation. The objective is to give effect to the will’s legally ascertainable meaning, subject to statutory rules and established principles of construction.

5. Dying Without a Will: Intestacy

5.1 Meaning of intestacy

A person dies intestate when they die without a valid will disposing of their estate. Intestacy may be total or partial.

Total intestacy occurs when no valid will governs the estate. Partial intestacy occurs when a will exists but fails to dispose effectively of all the deceased’s property. For example, a will may distribute specific assets but contain no effective residuary clause.

In either situation, statutory rules determine who is entitled to the property not effectively disposed of by the will. These rules are designed to provide a predictable order of succession, but they may not reflect the deceased’s actual preferences.

5.2 The statutory order of inheritance

The order of inheritance differs between Australian jurisdictions. Generally, the law gives priority to a surviving spouse or domestic partner and descendants, followed by other relatives such as parents, siblings, and more remote family members.

The statutory scheme must be applied carefully where the deceased had:

• a spouse and children from a previous relationship;
• more than one person who may qualify as a spouse or domestic partner;
• children from different relationships;
• adopted children;
• stepchildren;
• a child who died before the deceased, leaving descendants;
• no surviving spouse or descendants; or
• family relationships involving parentage orders or other legally recognised arrangements.

The term “spouse” may include a de facto partner, but eligibility and the treatment of competing relationships depend on the relevant statute. A person who was separated from the deceased may still have a legal status that affects succession, depending on whether the relationship had legally ended and on the applicable legislation.

5.3 Spouse and children

Where a deceased person leaves a spouse and children, the surviving spouse does not necessarily inherit the entire estate. The statutory distribution may provide a preferential entitlement to the spouse, a statutory legacy or fixed amount, personal effects, and a share of the remaining estate, with descendants receiving the balance.

The details vary significantly. In New South Wales, the Succession Act 2006 contains a statutory framework for spouse and issue entitlements. South Australia’s Succession Act 2023 provides a different structure, including a statutory legacy amount that is relevant to the distribution where a spouse and descendants survive. The South Australian amount was increased to $120,000 from 1 January 2025, illustrating why current jurisdiction-specific legislation must be consulted. NSW legislation+1

Where there are children from more than one relationship, the surviving spouse’s entitlement and the children’s shares can become particularly important. The law generally seeks to recognise legally established parent-child relationships rather than simply relying on who lived with the deceased or who was financially close to them.

5.4 Children and descendants

Children generally inherit in accordance with the statutory definition of child and the applicable rules of representation. Adopted children are ordinarily treated as children of their adoptive parents for intestacy purposes. Stepchildren, by contrast, do not necessarily inherit from a stepparent unless they fall within a statutory category or are provided for through another legal mechanism.

Where a child of the deceased has died before the deceased, that child’s descendants may be entitled to take the share that would otherwise have passed to their parent. This is commonly described as distribution by representation or per stirpes, although terminology and detailed rules vary.

5.5 No surviving spouse or descendants

Where there is no qualifying spouse or descendant, the estate generally passes to relatives in a statutory order. Depending on the jurisdiction, this may include parents, siblings, nieces and nephews, grandparents, aunts and uncles, and cousins.

The precise order and the treatment of half-blood relatives must be determined under the applicable legislation. If no person qualifies under the statutory scheme, the estate may ultimately pass to the state or territory as bona vacantia.

5.6 Intestacy and Indigenous estates

Succession involving Aboriginal and Torres Strait Islander people may raise particular legal and cultural considerations. Statutory frameworks in some jurisdictions recognise that the ordinary distribution of an intestate estate may not adequately account for customary relationships, community obligations, or cultural considerations.

For example, the New South Wales Succession Act 2006 contains provisions concerning distribution of an Indigenous person’s intestate estate. These provisions allow the court to make orders that take account of relevant customary law and relationships, subject to the statutory framework. The issue should not be approached by assuming that one uniform customary succession system applies across all Aboriginal and Torres Strait Islander communities.

6. Probate and Grants of Representation

6.1 What is probate?

Probate is a grant issued by the Supreme Court confirming the validity of a will for the purpose of estate administration and recognising the authority of the executor named in it.

The grant provides formal evidence that the executor is authorised to deal with estate assets. Banks, land registries, share registries, and other institutions may require probate before releasing or transferring property.

Probate does not itself distribute the estate. It establishes the executor’s authority to carry out the administration process in accordance with the will and the law.

6.2 When is probate required?

Not every estate requires a grant. Some assets may be transferred or released without probate, particularly where their value is modest or the relevant institution accepts alternative evidence.

However, probate is commonly required where the estate includes real property registered solely in the deceased’s name, substantial bank or investment assets, or assets held by institutions that require a court grant before allowing an executor to act.

The requirements are not uniform. A bank may have its own threshold and documentation policy, while a land registry may require a grant to register a transmission or transfer. The Supreme Court of Victoria explains that some estates can be administered informally, while others require probate or letters of administration. The Supreme Court of Victoria+1

6.3 Letters of administration

Where a person dies without a valid will, or where there is no executor able or willing to act, an eligible person may apply for letters of administration.

The grant appoints an administrator and authorises that person to administer the estate. The administrator’s role is broadly comparable to that of an executor, but the administrator derives authority from the court rather than from appointment in the will.

The person entitled to apply is usually determined by statutory priority and the circumstances of the estate. A surviving spouse or domestic partner may have priority, followed by other eligible relatives or persons with an appropriate interest. The court may require evidence of consent, renunciation, or the absence of persons with a prior entitlement.

6.4 Administration with the will annexed

Where a valid will exists but the named executor cannot act, the court may issue letters of administration with the will annexed. This allows an administrator to carry out the testamentary directions even though the person appointed as executor is unavailable or unsuitable.

This may occur where the executor died before the testator, has renounced the appointment, lacks capacity, cannot be located, or is otherwise unable to administer the estate.

6.5 Limited and special grants

Courts may issue grants limited to particular purposes or periods. Examples include grants pending the determination of litigation, grants to preserve assets, or grants where the person ordinarily entitled to administer the estate cannot act temporarily.

Such grants are designed to prevent an estate from being left without effective management while a dispute or practical obstacle is resolved.

6.6 The probate application process

Although forms and procedures differ, a typical probate application requires:

1. The original will and any codicils.
2. A death certificate or other accepted evidence of death.
3. An affidavit or other evidence supporting the application.
4. Information about the executor and relevant beneficiaries.
5. An inventory or statement of the estate’s assets and liabilities, where required.
6. Publication or notice in accordance with the court’s rules.
7. Payment of applicable filing fees.

The applicant must comply with the rules of the relevant Supreme Court. In New South Wales, the Supreme Court publishes separate procedures for probate, letters of administration, and contested grants. Communities and Justice+1

6.7 Caveats and objections

A person with an interest in an estate may, in appropriate circumstances, lodge a caveat to prevent a grant from being issued while a dispute is investigated. A caveat may be relevant where there are competing wills, concerns about forgery, questions about testamentary capacity, or allegations of undue influence.

A caveat is not a final determination that a will is invalid. It is a procedural mechanism intended to preserve the position while the court considers whether a grant should be made. It may be challenged, removed, or allowed to lapse under the applicable court rules.

The Supreme Courts of New South Wales and Victoria publish procedures governing probate caveats and objections. Communities and Justice+1

7. The Administration of a Deceased Estate

7.1 The personal representative

The executor or administrator is commonly described as the personal representative of the deceased. This person is responsible for gathering and protecting the estate, dealing with liabilities, and distributing the remaining assets to those legally entitled.

The role is fiduciary in nature. The personal representative must act honestly, carefully, and for proper estate purposes. They cannot treat estate property as their own or use their position to obtain unauthorised personal benefits.

7.2 Identifying and securing assets

The first substantive task is to establish what the deceased owned and what was owed to them. This may involve contacting banks, financial institutions, insurers, employers, government agencies, share registries, property managers, business partners, and other relevant organisations.

The estate may include:

• real estate;
• bank accounts and term deposits;
• shares and investment portfolios;
• vehicles and personal possessions;
• business interests;
• money owed to the deceased;
• contractual rights;
• intellectual property rights;
• digital assets and accounts, to the extent legally transferable; and
• interests held as a tenant in common.

The representative should also identify assets that do not form part of the estate, such as property passing automatically to a surviving joint tenant or assets held by a separate trust.

Property should be secured and appropriately insured. If a house is vacant, for example, the representative may need to arrange access, maintain insurance, prevent deterioration, and protect the property from unauthorised occupation.

7.3 Identifying creditors and liabilities

An estate may be responsible for outstanding debts and liabilities of the deceased, subject to applicable law. These can include mortgages, personal loans, credit card balances, unpaid invoices, contractual obligations, taxes, and certain litigation liabilities.

The representative must establish which claims are genuine and payable. Creditors do not automatically acquire priority merely because they make a demand. Claims should be examined, documented, and dealt with in accordance with the statutory order of payment.

Funeral and administration expenses are also relevant. The law generally gives proper estate administration expenses a recognised position in the payment process, although the exact ranking of claims is governed by the applicable legislation.

7.4 Paying debts before distribution

Beneficiaries are ordinarily entitled to receive only what remains after proper estate liabilities and expenses have been paid or adequately provided for. Distributing assets prematurely can expose the executor or administrator to personal liability if creditors later establish valid claims.

Where the estate is insolvent, the representative must follow the applicable rules governing the administration of insolvent estates. The estate cannot simply pay favoured beneficiaries while leaving creditors unpaid.

7.5 Distribution and accounting

After liabilities, expenses, and necessary reserves have been dealt with, the personal representative distributes the estate according to the will or intestacy rules.

Distribution may involve transferring property, paying money, selling assets, or establishing trusts. Where the will creates a continuing trust, the executor may also become a trustee with separate responsibilities.

A personal representative should maintain accurate records of receipts, payments, valuations, investment decisions, asset sales, and distributions. Beneficiaries may be entitled to information and accounts concerning the administration. In New South Wales, the Supreme Court explains the obligation to keep estate accounts and the circumstances in which accounts may be formally examined by the court. Communities and Justice+1

7.6 Executor’s commission

An executor is not automatically entitled to payment merely because they have undertaken the role. However, legislation and court practice in the relevant jurisdiction may permit commission or remuneration in appropriate circumstances.

The court may consider the work performed, the responsibility undertaken, the size and complexity of the estate, and the benefit conferred by the executor’s services. A professional executor may also be remunerated under an applicable agreement or statutory arrangement.

8. Family Provision Claims and the Limits of Testamentary Freedom

8.1 The purpose of family provision legislation

Family provision legislation allows eligible applicants to seek an order where the deceased’s will, or the intestacy distribution, has failed to make adequate provision for their proper maintenance and support.

The legislation reflects a balance between two principles: respect for testamentary freedom and the recognition that certain family members and dependants may have legitimate claims against the estate.

A family provision claim does not automatically succeed because an applicant has been excluded from a will. Nor does a close family relationship guarantee a particular inheritance. The court must apply the statutory test and consider the circumstances of the applicant, the estate, the deceased, and competing beneficiaries.

8.2 Who may apply?

Eligible applicants vary by jurisdiction. Common categories include:

• a spouse or domestic partner;
• a former spouse in specified circumstances;
• a child of the deceased;
• a stepchild in circumstances recognised by the statute;
• a person who was dependent on the deceased; and
• certain members of the deceased’s household or persons in a close personal relationship with them.

Some jurisdictions impose additional requirements for applicants outside the immediate family. A person who was financially dependent on the deceased may have to demonstrate the nature and extent of that dependence.

8.3 Factors considered by the court

Depending on the statute, a court may consider:

• the applicant’s financial resources and needs;
• age, health, and earning capacity;
• the relationship between the applicant and the deceased;
• the nature and duration of any dependency;
• the size and composition of the estate;
• the needs and circumstances of other beneficiaries;
• contributions made by the applicant to the deceased or their property;
• the deceased’s obligations and responsibilities; and
• the reasons, if ascertainable, for the testamentary distribution.

The court’s task is not necessarily to reconstruct the estate according to what the deceased should have done. It is to decide whether the statutory basis for intervention has been established and, if so, what order is appropriate.

8.4 Time limits

Family provision claims are subject to strict limitation periods. These periods differ between jurisdictions and may run from the date of death or another statutorily specified event.

For example, in New South Wales, an application generally must be made within 12 months of the deceased’s death. The court may have power to extend time in certain circumstances, but an applicant should not assume that an extension will be granted. legalaid.nsw.gov.au+1

Time limits in other states and territories may be shorter or longer. The applicable legislation and court rules should be checked immediately after death where a potential claim exists.

8.5 Family provision and estate distribution

A family provision claim may affect the timing and final distribution of an estate. An executor who knows that a potential eligible claimant may bring proceedings should consider the risk of distributing assets before the relevant claims have been resolved or the applicable period has expired.

The personal representative must balance the duty to administer the estate without unnecessary delay against the need to protect beneficiaries and the estate from later claims.

9. Assets That May Pass Outside the Will

A central principle of estate planning is that not every asset associated with a deceased person forms part of the estate.

9.1 Jointly owned property

Property held as joint tenants generally passes to the surviving joint tenant by the right of survivorship. The deceased’s interest does not ordinarily become part of the estate available for distribution under the will.

Property held as tenants in common is different. The deceased’s defined share generally forms part of the estate and may pass under the will or intestacy rules.

The distinction is especially important for real estate, joint bank accounts, and jointly held investments. The legal form of ownership, not simply the fact that another person had access to the asset, determines how it is treated.

9.2 Superannuation death benefits

Superannuation is a particularly important exception to ordinary testamentary succession. A superannuation death benefit does not automatically form part of the deceased’s estate and is not necessarily distributed according to the will.

The superannuation fund trustee generally determines payment under superannuation law and the fund’s governing rules. A valid binding death benefit nomination may direct payment to an eligible beneficiary or to the deceased’s legal personal representative. A non-binding nomination may guide the trustee but does not necessarily compel the trustee to follow it.

Eligible recipients are restricted by superannuation law and may include a spouse, children, a person in an interdependency relationship, a person financially dependent on the deceased, or the legal personal representative. The precise rules and nomination requirements depend on the relevant fund and applicable law. moneysmart.gov.au+2

If the benefit is paid to the estate, it may then be administered under the will or intestacy rules, subject to applicable tax and other legal considerations. If it is paid directly to an eligible beneficiary, the will ordinarily does not control that payment.

9.3 Life insurance

Life insurance proceeds may be paid directly to a nominated beneficiary or to the estate, depending on the policy, ownership arrangements, and nomination. A policy owned by the deceased and payable to the estate may form part of the estate’s available assets. A policy with a valid direct beneficiary arrangement may operate outside the will.

The personal representative should identify relevant policies and establish who is entitled to the proceeds before including them in the estate inventory.

9.4 Family trusts and other trust property

Assets legally owned by a trustee in a family trust are generally not owned personally by the deceased merely because they were the person who established or controlled the trust. The trust deed and applicable trust law govern the succession of control and the distribution of trust property.

A will may deal with certain rights associated with a trust, such as a power of appointment or shares in a corporate trustee, where those rights are legally transferable and form part of the deceased’s estate. It cannot simply transfer trust property that the deceased did not personally own.

This distinction is particularly important in estates involving family businesses, investment structures, and discretionary trusts. moneysmart.gov.au+1

9.5 Digital assets and intellectual property

Digital assets may include online accounts, digital currencies, domain names, electronically stored records, and intellectual property rights. Their treatment depends on the nature of the asset, the relevant contract, ownership arrangements, privacy law, and the applicable succession rules.

A digital account is not necessarily property that can be transferred to an executor. Some accounts are personal licences governed by platform terms, while other assets, such as cryptocurrency legally owned by the deceased, may form part of the estate.

An executor may need to establish ownership, secure access credentials where lawfully available, identify contractual restrictions, and preserve records relevant to the estate.

10. Cross-Border Estates and Foreign Assets

Australian succession matters increasingly involve international elements. A deceased person may have lived in one country, owned real estate in another, held investments in Australia, and left a will executed under foreign law.

The legal analysis may involve questions of domicile, habitual residence, the location of property, the formal validity of a will, and the recognition of foreign grants.

10.1 Movable and immovable property

Conflict-of-laws principles commonly distinguish between movable property and immovable property. Succession to immovable property, particularly land, is generally governed by the law of the place where the land is situated. Succession to movable property may be governed by the law of the deceased’s domicile at death, subject to the applicable conflict rules and statutory provisions.

A foreign will may therefore be effective in relation to some assets but require additional steps or a separate grant before assets in Australia can be transferred.

10.2 Resealing a foreign grant

Where a grant of probate or administration has been issued in another jurisdiction, it may sometimes be recognised in Australia through a process known as resealing. Resealing gives the foreign grant legal effect in the relevant Australian jurisdiction for the purposes of dealing with local assets.

The availability of resealing depends on the jurisdiction that issued the grant and the legislation of the Australian state or territory in which the assets are located. If the grant cannot be resealed, a fresh Australian application may be necessary.

For example, the Supreme Court of New South Wales identifies the categories of foreign grants it may reseal and explains when a new grant may instead be required. Queensland also provides a resealing procedure for eligible interstate and overseas grants. Supreme Court of NSW+1

10.3 Multiple grants and administration

Where an estate includes assets in several countries, more than one grant may be necessary. Local land registration rules, banking requirements, tax obligations, and restrictions on the transfer of property can make cross-border administration complex.

An executor should not assume that a grant issued in one country automatically authorises the transfer of every asset in another. The applicable law and local recognition procedure must be examined for each relevant jurisdiction.

11. Disputes Concerning Wills and Estates

11.1 Challenging the validity of a will

A person with a sufficient legal interest may challenge a will on grounds such as:

• lack of testamentary capacity;
• lack of knowledge and approval;
• undue influence;
• fraud or forgery;
• failure to comply with statutory formalities; or
• the existence of a later valid will or revocation.

The evidence may include medical records, solicitor’s notes, witness testimony, correspondence, drafts, and documents showing the circumstances in which the will was prepared and signed.

11.2 Executor misconduct

An executor or administrator may be challenged where they fail to protect estate assets, refuse to provide proper information, make unauthorised payments, delay administration without justification, or act in a conflict of interest.

Depending on the circumstances, a court may order the representative to account, repay misapplied funds, compensate the estate, or be removed and replaced. Beneficiaries may also seek directions from the court where the proper course of administration is uncertain.

11.3 Mediation and settlement

Not every succession dispute requires a full trial. Mediation can be useful in disputes over family provision, interpretation of a will, executor conduct, or the division of estate assets.

A settlement may preserve estate value and reduce the emotional and financial costs of litigation. However, any agreement must be legally effective and should not compromise the rights of persons who are not properly represented or whose interests are protected by statute.

11.4 Costs of litigation

Succession proceedings can be expensive. The treatment of costs depends on the nature of the dispute, the conduct of the parties, the applicable rules, and the court’s discretion.

In some circumstances, costs may be paid from the estate, particularly where proceedings were reasonably necessary to clarify the will or protect the estate. In other cases, a party may be ordered to pay costs personally, especially where litigation was unnecessary, unreasonable, or conducted improperly.

12. Practical Estate Planning Considerations

Effective estate planning requires coordination between the will and the other legal arrangements through which property passes on death.

A person preparing an estate plan should consider:

1. A valid and current will: The document should comply with the formal requirements of the relevant jurisdiction and accurately reflect the testator’s intentions.
2. Executor selection: The appointed executor should be capable, trustworthy, and willing to undertake the responsibilities.
3. Substitute appointments: A replacement executor should be considered in case the first appointment cannot take effect.
4. Beneficiary identification: The will should identify beneficiaries clearly and provide for contingencies.
5. Residuary distribution: The will should deal with property not covered by specific gifts.
6. Superannuation nominations: Beneficiary nominations should be reviewed separately and coordinated with the will.
7. Joint ownership: The ownership structure of real estate and other assets should be understood.
8. Trust arrangements: Family trusts and testamentary trusts should be considered in light of their separate legal operation.
9. Business succession: Company shares, partnership interests, shareholder agreements, and business continuity arrangements should be reviewed.
10. International property: Assets located overseas may require separate succession planning and local legal formalities.
11. Regular review: Marriage, divorce, separation, birth of children, death of beneficiaries, acquisition of property, and relocation may justify reviewing the estate plan.
12. Secure storage and accessibility: The executor should know where the original will and relevant records can be found.

A will is only one part of a broader succession strategy. Its effectiveness depends on whether the testator’s assets, ownership arrangements, and beneficiary nominations are consistent with the intended distribution.

13. The Relationship Between Succession Law and Other Areas of Australian Law

Succession law intersects with several other legal disciplines. These connections are important because the administration of an estate may involve rights and obligations that are not determined exclusively by the will.

13.1 Family law and property settlements

A person’s death may occur before or during family law proceedings. The surviving spouse’s rights under family law and succession law are not necessarily identical. A property settlement made during the deceased’s lifetime may affect what remains in the estate, while the existence of a marriage or de facto relationship may determine whether someone qualifies as a spouse for intestacy or family provision purposes.

A will should therefore be considered alongside any binding financial agreement, property settlement, or existing court order. Estate planning cannot safely assume that a person’s family relationships will remain legally unchanged.

13.2 Taxation of deceased estates

The death of an individual does not automatically eliminate tax obligations. An executor may need to arrange outstanding individual income tax returns, deal with income earned by the estate during administration, and consider capital gains tax consequences when assets are sold or transferred.

Australia does not impose a general inheritance tax or estate duty at the federal level. However, this does not mean that inheriting or disposing of property is necessarily tax-free. Capital gains tax, income tax, superannuation death benefit tax, and state or territory duties may be relevant depending on the asset and transaction.

Tax treatment can differ according to the identity of the beneficiary, the type of property, the deceased’s circumstances, and whether the asset is sold or transferred in specie. Executors should therefore distinguish between the legal distribution of an estate and the tax consequences of particular transactions.

13.3 Trust law and fiduciary obligations

Where a will creates a testamentary trust, the executor may also become responsible for establishing or administering that trust. The trustee must comply with the trust instrument and the general law governing fiduciary duties.

This may involve managing investments, keeping accounts, preserving capital, making authorised distributions, and acting impartially between beneficiaries with different interests. The executor’s responsibilities in administering the estate should not be confused with the trustee’s continuing obligations once the testamentary trust has been established.

13.4 Company and business succession

The death of a shareholder, director, partner, or business owner may affect the operation of a company or enterprise. Shares may pass through the estate, but the deceased’s position as director does not necessarily pass to a beneficiary. A company’s constitution, shareholders’ agreement, partnership agreement, and relevant legislation may determine what happens to ownership and management rights.

A business owner should therefore consider succession arrangements independently of the will. Otherwise, the estate may inherit an interest that is difficult to value, transfer, or manage, while the business itself faces uncertainty.

14. Important Legal Principles and Illustrative Cases

Australian succession law is largely statutory, but judicial decisions remain important in explaining the principles governing wills, capacity, undue influence, and estate administration.

14.1 Banks v Goodfellow (1870) LR 5 QB 549

Although an English decision, Banks v Goodfellow remains influential in the common law understanding of testamentary capacity. It provides the traditional framework for assessing whether a testator understood the nature of making a will, the extent of their property, and the claims that might reasonably be considered.

Its importance lies in distinguishing testamentary capacity from general mental or physical health. A medical diagnosis alone does not determine whether a person can make a valid will.

14.2 Nicholson v Knaggs [2009] VSC 64

This Victorian decision is important in the development of the law concerning undue influence and suspicious circumstances in will-making. It examined the distinction between influence that remains compatible with a testator’s independent decision and influence that overcomes the testator’s freedom of choice.

The decision is frequently discussed in relation to the evidentiary difficulties involved in proving undue influence. The Victorian Law Reform Commission’s succession law review provides a detailed account of the relevant principles and their development. Victorian Law Reform Commission

14.3 Tobin v Ezekiel [2012] NSWCA 285

This New South Wales Court of Appeal decision is relevant to family provision claims and the statutory assessment of whether adequate provision has been made for an eligible applicant. It illustrates that family provision proceedings require a structured examination of statutory eligibility and the circumstances of the applicant and estate, rather than an automatic redistribution based on family status alone.

14.4 Singer v Berghouse (1994) 181 CLR 201

This High Court decision is a significant authority on family provision under the former New South Wales statutory framework. It established a two-stage approach: first, determining whether adequate provision had been made for the applicant’s proper maintenance and advancement in life; and second, if it had not, deciding what provision should be made.

The precise statutory language and subsequent legislative amendments must be considered when applying older authorities to contemporary claims. Nevertheless, the case remains important in understanding the development of Australian family provision principles.

14.5 The continuing role of judicial interpretation

These decisions illustrate that succession law cannot be understood exclusively by reading the formal requirements for a will or the statutory order of intestacy. Courts must also resolve questions about intention, capacity, coercion, interpretation, and the proper exercise of estate administration powers.

The applicable legislation remains the starting point. Case law explains how statutory provisions and common law principles operate in particular factual circumstances.

15. Key Takeaways

1. Australian succession law is primarily governed by state and territory legislation rather than one national succession statute.
2. Each jurisdiction has its own rules governing wills, probate, intestacy, estate administration, and family provision.
3. A will is a legal instrument that directs how the estate is to be distributed after death.
4. Testamentary freedom is recognised but limited by family provision legislation and other legal rights.
5. A conventional will generally must be written, signed by the testator, and witnessed in accordance with the applicable legislation.
6. Testamentary capacity concerns the testator’s ability to understand the nature and consequences of making a will.
7. Knowledge and approval of the will’s contents are separate requirements from testamentary capacity.
8. Undue influence, fraud, forgery, and defective execution may provide grounds for challenging a will.
9. Some jurisdictions permit courts to recognise informal testamentary documents where the statutory requirements are satisfied.
10. Marriage and divorce may affect an existing will, but the consequences differ between jurisdictions.
11. A person who dies without a valid will is intestate, and statutory rules determine who inherits.
12. Intestacy can be total or partial, including where a will fails to dispose of the entire estate.
13. The inheritance rights of spouses, de facto partners, children, and other relatives depend on the relevant state or territory legislation.
14. A stepchild does not necessarily inherit from a stepparent under intestacy rules.
15. Probate confirms the will’s status and the executor’s authority to administer the estate.
16. Letters of administration are generally required where there is no effective executor or no valid will.
17. An executor or administrator must identify and protect assets, establish liabilities, pay proper expenses and debts, and distribute the remaining estate.
18. Personal representatives must keep proper records and act in the interests of the estate and its beneficiaries.
19. Family provision legislation permits eligible applicants to seek further provision where the statutory requirements are satisfied.
20. Family provision claims are subject to strict jurisdiction-specific time limits.
21. Jointly owned property held as joint tenants generally passes to the surviving joint tenant rather than under the will.
22. Superannuation death benefits do not automatically form part of the estate and may be governed by separate nomination and trustee rules.
23. Assets held in family trusts are generally governed by the trust deed and trust law rather than the will.
24. Foreign grants may sometimes be resealed in Australia, but recognition depends on the relevant jurisdiction and statutory requirements.
25. Effective estate planning requires coordination between the will, property ownership, superannuation nominations, trusts, business arrangements, and international assets.

16. Frequently Asked Questions

1. Is succession law the same throughout Australia?

No. Succession law is principally regulated by state and territory legislation. Although the jurisdictions share many principles, their rules concerning wills, intestacy, probate, family provision, and estate administration differ.

2. What happens if someone dies without a will in Australia?

The person dies intestate. The estate is distributed according to the intestacy legislation of the relevant jurisdiction. The statutory scheme generally prioritises a surviving spouse or domestic partner and descendants before more remote relatives, but the precise order and shares differ.

3. Does a will have to be registered in Australia?

There is no general national requirement to register a will during the testator’s lifetime. The original document should be stored securely and made accessible to the executor. After death, the executor may need to lodge it with the Supreme Court as part of a probate application.

4. Can a handwritten will be valid?

Potentially. A handwritten will may satisfy ordinary formal requirements if it is properly signed and witnessed. An informal or unwitnessed document may also be recognised in certain circumstances under statutory provisions that allow courts to dispense with formalities. Recognition depends on the jurisdiction and the evidence of testamentary intention.

5. Can a person make a will without a lawyer?

Australian law does not generally require a lawyer to prepare a will. However, a will that is poorly drafted, incorrectly executed, or inconsistent with the person’s asset ownership arrangements may create significant disputes. Professional assistance is particularly important where the estate involves businesses, trusts, blended families, foreign property, or potential family provision claims.

6. Can a will be changed after it has been signed?

Yes. A person with testamentary capacity can generally revoke or replace a will, or amend it through a valid codicil. The alteration must comply with the applicable legal requirements.

7. Does marriage revoke an existing will?

In many Australian jurisdictions, marriage revokes an earlier will unless a statutory exception applies, such as where the will was made in contemplation of that marriage. The precise rule should be checked under the law of the relevant state or territory.

8. Does divorce automatically cancel an entire will?

Not necessarily. Divorce commonly revokes gifts to a former spouse and their appointment as executor, subject to statutory exceptions. The remainder of the will may continue to operate. Separation without divorce may have different consequences.

9. Can a child be excluded from a will?

Generally, a testator may decide not to leave property to a child. However, a child may qualify to bring a family provision claim under the applicable legislation. The court will assess the statutory requirements and circumstances rather than automatically awarding an inheritance.

10. Can a de facto partner inherit under intestacy?

Yes, where the person qualifies as a spouse or domestic partner under the relevant legislation. The requirements for establishing the relationship and the effect of competing relationships vary between jurisdictions.

11. What is the difference between probate and letters of administration?

Probate is a grant confirming a will and the authority of the executor named in it. Letters of administration appoint an administrator where there is no effective executor or, in the ordinary case, no valid will.

12. Is probate always required?

No. Some institutions and asset holders may release assets without a court grant, particularly in smaller or straightforward estates. Probate is more likely to be required where the estate includes substantial assets, real property, or assets held by institutions that require formal evidence of authority.

13. How long does probate take in Australia?

There is no single national timeframe. The duration depends on the jurisdiction, the completeness of the application, the complexity of the estate, registry processing times, and whether objections or disputes arise.

14. Can an executor sell the deceased’s house?

An executor may have authority to sell estate property where the will and applicable law permit it, or where a sale is necessary for proper administration. The executor must act for proper estate purposes and comply with relevant legal requirements.

15. Can an executor also be a beneficiary?

Yes. It is common for a testator to appoint a beneficiary as executor. However, the executor must still act properly and comply with fiduciary obligations. Their personal interest as a beneficiary does not authorise them to misuse estate assets or disregard the rights of others.

16. Can an executor refuse to act?

Generally, yes. A named executor may renounce the appointment, subject to applicable procedural requirements and the extent to which they have already undertaken acts of administration. Another executor or an eligible administrator may then need to obtain authority from the court.

17. What happens if an executor misuses estate money?

A beneficiary or another person with appropriate standing may seek court intervention. Depending on the evidence, the court may require the executor to account, restore misapplied assets, compensate the estate, or be removed.

18. Can a person challenge a will after probate has been granted?

A grant does not necessarily prevent all later challenges. A person with an appropriate interest may be able to commence proceedings, although the available remedies, procedural requirements, and effect of delay depend on the circumstances and applicable law.

19. What is a family provision claim?

It is a statutory claim by an eligible person seeking further provision from a deceased estate because the will or intestacy distribution did not make adequate provision for their proper maintenance and support.

20. How long does someone have to make a family provision claim?

The limitation period depends on the jurisdiction. In New South Wales, an application generally must be made within 12 months of death. Other jurisdictions have different periods and may permit extensions in certain circumstances.

21. Does superannuation form part of the deceased’s estate?

Not automatically. Superannuation death benefits are generally dealt with by the fund trustee under superannuation law and the fund’s governing rules. They may be paid directly to an eligible beneficiary or to the deceased’s legal personal representative.

22. Does a will control property held jointly with another person?

Not necessarily. Property held as joint tenants generally passes to the surviving joint tenant by survivorship. A deceased person’s interest in property held as tenants in common will ordinarily form part of the estate.

23. Can an overseas will be used in Australia?

Potentially. An overseas will may be recognised under applicable conflict-of-laws rules, but its validity and effect must be assessed. A separate Australian grant or resealing procedure may be necessary to deal with assets located in Australia.

24. What happens if an estate has more debts than assets?

The estate may be insolvent. The personal representative must follow the applicable rules for dealing with creditors and cannot distribute estate property to beneficiaries as though the estate were solvent. Specialist advice may be necessary to avoid personal liability.

25. Can the state inherit an estate?

Yes. If a person dies intestate and no person qualifies to inherit under the applicable statutory scheme, the estate may pass to the state or territory as bona vacantia, subject to the relevant law.

Conclusion

Australian succession law provides the legal framework through which a person’s property and obligations are dealt with after death. It combines testamentary freedom with statutory rules designed to ensure that wills are validly made, estates are properly administered, creditors are dealt with, and eligible family members and dependants can seek provision where the law permits.

The system is substantially decentralised. Each state and territory regulates the central elements of succession, including the formal requirements for wills, intestate distribution, probate procedure, estate administration, and family provision claims. This means that the place where the deceased lived, the location and legal character of assets, and the circumstances of the family can all affect the outcome.

The distinction between estate property and assets that pass independently of the will is equally important. Joint tenancy, superannuation, life insurance, trusts, and business arrangements may operate through separate legal mechanisms. A will that appears comprehensive may therefore fail to achieve the intended distribution if these arrangements have not been reviewed.

For executors and administrators, succession law imposes substantial responsibilities. They must identify and protect estate assets, establish liabilities, comply with court procedures where necessary, maintain proper accounts, and distribute property according to the will or statutory rules. Their role is fiduciary and subject to judicial supervision.

Ultimately, effective succession planning is not simply the preparation of a will. It is the coordination of legal ownership, family arrangements, financial structures, and testamentary intentions within the applicable statutory framework. Understanding these principles is essential to appreciating how Australian law protects property rights and regulates the transfer of wealth between generations.

Further Reading and Primary Legal Sources

The following legislation and official resources provide a foundation for further study. The current version of the legislation in the relevant jurisdiction should always be consulted.

Primary legislation

• Succession Act 2006 (New South Wales)
• Probate and Administration Act 1898 (New South Wales)
• Wills Act 1997 (Victoria)
• Administration and Probate Act 1958 (Victoria)
• Succession Act 1981 (Queensland)
• Succession Act 2023 (South Australia)
• Wills Act 1970 (Western Australia)
• Administration Act 1903 (Western Australia)
• Wills Act 2008 (Tasmania)
• Wills Act 1968 (Australian Capital Territory)
• Wills Act 2000 (Northern Territory)

Courts and government resources

• Supreme Court of New South Wales – Wills and Probate
• Supreme Court of Victoria – Wills and Probate
• Queensland Courts – Wills and Probate
• Legal Aid NSW – Wills and Estates
• Legal Aid WA – Wills and Estates
• ASIC Moneysmart – Who Gets Your Super If You Die

This article is intended for general legal education. It explains the principal features of Australian succession law and is not individual legal advice. The applicable rules depend on the state or territory, the nature and location of the assets, and the circumstances of the deceased and potential beneficiaries.