Inheritance Law in Australia

Information on inheritance law and inheritance tax for resident foreigners and their families with assets in and outside of Australia...

Australian inheritance law varies in each state or territory. As of September 2011, these laws were being rewritten and updated as there is a steady progression towards uniform succession law throughout the country.

The executor of a will is responsible for complying with inheritance laws. The Public Trustees office in any state or territory can be contacted to find out about inheritance laws in a particular state.

As a general guideline the executor of a will is responsible for the following:

  • Notifying the beneficiaries of the will
  • Looking after and valuing the estate
  • Obtaining authority, usually from the state Supreme Court, to administer the estate
  • Completing all tax returns
  • Paying all outstanding debts
  • Dividing the estate and establishing any trusts

Inheritance Tax

The executor of a will or estate is responsible for the deceased individual's tax affairs. Australia has no death duty. However, some financial transactions that happen as a consequence of a person's death are taxed.

The taxation responsibilities of the executor of a will or estate, which they carry out on behalf of the deceased, are clearly outlined by the Australian Taxation Office.

After a person dies their estate can continue to gather income, for example from unpaid wages, interest on bank accounts, share dividends and capital gains from the sale of assets. Until the estate is fully administered a trust tax return must be paid on any taxable income. This tax has either to be dealt with by the executor or by beneficiaries named in the will. Full details on dealing with this taxation are available from the Australian Taxation Office.

All beneficiaries of a will, that is anyone who receives any part of it, may also have tax obligations depending on what they inherit. No tax is payable on anything, such as the capital in a bank account, which has already been taxed. However, capital gains tax may need to be paid on any assets that are passed on. The rules are the same for any Australian resident even if the deceased estate is overseas, although a tax credit may be applicable. Full details on the tax obligations for the beneficiaries of wills are available from the Australian Taxation Office.

Capital Gains Tax

In Australia special capital gains tax (CGT) rules apply to the transfer of assets from the estate of a deceased person. The transfer of the asset is considered to have occurred on the day the person died. The most common types of capital gains assets are property, shares and fund investments. CGT applies to any CGT asset that changes ownership. Assets which were acquired before 20 September 1985 are exempt as this date pre-dates CGT. Full financial details should be retained of any asset which could be subject to CGT, including its value at the time of the person's death.

The transfer of many assets following a death are exempt from CGT if they are passed to either a beneficiary or a personal legal representative. Assets transferred from a legal representative to a beneficiary are also exempt. However CGT must be paid if an asset is transferred after death to one of the following:

  1. A foreign resident
  2. A tax-exempt entity, for example a charity, church or superannuation fund trustee

Full details on capital gains tax payments can be found on the website of the Australian Taxation Office.

Further Information