Wills and Inheritance Law in Australia

Information on inheritance law and the types of will which apply when living in Australia...

In Australia, an individual needs a legal will to have control over who benefits from their estate. A person's estate is defined as all their financial and material assets including any debts or liabilities they have.

In the absence of a will the law in the state or territory lived in dictates how an estate is managed. The government uses a deceased individual's assets to pay any outstanding bills and taxes before distributing the remainder using a formula. Some family members receive more than others. Should the deceased have no living relatives then all assets are paid to the state government.

Laws surrounding wills vary slightly in each state or territory. In most states all individuals over the age of 18 who are legally competent are advised to have a valid will. In some states, wills can be written by people under the age of 18 under specific circumstances.

A will can include several things:

  • How assets are to be shared. An asset is defined as something owned by an individual and can be financial (such as bank accounts or bonds), and physical such as a house or car
  • Who is to care for any young children
  • The establishment of trusts
  • Charitable donations
  • Funeral instructions

It is advisable to make a formal legal will. To be legally valid, a will must be signed and properly witnessed. This makes it less likely to be challenged. Formalising a legal will can be done using a solicitor or other legal professional. There is a fee for drawing up a legal will.

Wills can also be made by Public Trustees. Public Trustees operate under state or territory government authority and offer independent and professional services. Their fees are government regulated. In most states the fee for drawing up a will depends on its complexity and whether the Public Trustee is to act as executor. The executor of a will is the person who ensures the wishes expressed in it are carried out. In most states the Public Trustees office provides a will writing service. A form containing all the relevant information is completed which then allows the will to be formally written.

For more information on using a Public Trustee to make a will follow the links below:

Updating a will

Once a will has been written an individual should update it as their legal circumstances change. A will should be updated in the following circumstances:

  1. After a marriage, divorce or separation.
  2. After the birth of a child or grandchild.
  3. If a spouse or beneficiary of the will dies.
  4. In the event of a significant change of financial circumstances.

As with the original writing of a will, an update should be done with a legal professional or Public Trustee to ensure the new will is legal.