Important Note: This information is provided for general educational purposes only and is not legal advice. Laws vary by state and territory and change over time. For advice specific to your situation, please consult a qualified legal professional.

Creating a will is one of the most significant steps a person can take to protect their loved ones and ensure their wishes are honoured after they’re gone. Yet for many Australians, it remains an uncomfortable topic that’s easy to postpone.

At Legasy, we understand that thinking about what happens after you’re no longer here isn’t easy. However, having a valid will in place provides peace of mind and can spare family members additional stress during an already difficult time.

This guide covers key information about wills in Australia—from what they are and why they matter, to how they can be created to be legally binding. We’ll walk through the process step by step, explain various options, and help readers understand what happens if a will isn’t in place.

What Is a Will?

A will is a legal document that sets out your wishes for the distribution of your assets after your death. It allows you to:

  • Name your beneficiaries (who gets what)
  • Appoint an executor (who will manage your estate)
  • Nominate guardians for any dependent children
  • Specify funeral arrangements
  • Create trusts for specific purposes
  • Make special gifts or donations

Beyond being just a list of who gets what, a will serves as your voice when you can no longer speak for yourself. It provides clear instructions that can prevent family disputes and ensure your estate is distributed according to your wishes, not according to default legal formulas.

Why Having a Will Matters

For Your Peace of Mind

Knowing that you’ve put proper arrangements in place for your loved ones provides significant peace of mind. You can rest assured that you’ve done everything possible to make a difficult time easier for those you leave behind.

For Your Family’s Wellbeing

Without a will, your family may face:

  • Lengthy delays in accessing your assets
  • Additional stress during an already emotional time
  • Potential conflicts over asset distribution
  • Significant legal costs
  • Outcomes that don’t reflect your wishes

For Control Over Your Legacy

Having a will means you—not the state—decide what happens to everything you’ve worked for throughout your life. It allows you to:

  • Support the people who matter most to you
  • Provide for special needs or circumstances
  • Protect vulnerable family members
  • Support causes you believe in
  • Preserve family heirlooms and sentimental items

What Happens If You Don’t Have a Will?

When someone dies without a valid will in Australia, they are said to have died “intestate.” In these cases, your assets are distributed according to a formula set by state or territory legislation, which may not align with your wishes.

The Intestacy Formula

While specific rules vary by state and territory, generally:

  1. Your spouse or de facto partner receives a significant portion or all of your estate
  2. Any remaining assets are distributed among your children
  3. If you have no spouse or children, assets go to parents, siblings, grandparents, aunts, and uncles—in that order
  4. If no relatives can be found, your estate goes to the state government

This standard formula doesn’t account for:

  • Blended family dynamics
  • Estranged relationships
  • Friends, carers, or other important people in your life
  • Charities or causes you support
  • Specific wishes regarding certain possessions

Additional Complications of Intestacy

Beyond asset distribution, dying without a will can lead to:

  • The court appointing an administrator (similar to an executor) who may not know your wishes
  • No guardian nominations for minor children, leaving decisions to the family court
  • Potential challenges and disputes among family members
  • Higher legal and administrative costs
  • Significant delays in settling your estate

Who Can Make a Will in Australia?

To make a valid will in Australia, you must:

  • Be at least 18 years old (with some exceptions for younger people in special circumstances)
  • Have “testamentary capacity,” meaning you understand:
    • What a will is and what making one means
    • The extent of your property and assets
    • Who might reasonably expect to be provided for in your will
    • The implications of including or excluding certain people

It’s important to note that having a diagnosed condition like dementia doesn’t automatically mean you lack testamentary capacity. The test is whether you understand what you’re doing at the time of making the will.

Types of Wills in Australia

There are several different types of wills available to Australians, each with specific purposes and requirements.

Formal Wills

A formal will is the standard type of will in Australia. To be valid, it must be:

Formal wills can be prepared by a solicitor, made using a will kit, or created through an online will service.

Holographic (Handwritten) Wills

While handwritten wills without witnesses (holographic wills) are not automatically valid in Australia, courts may accept them in certain circumstances under “informal will” provisions. However, they often lead to costly legal proceedings to prove their validity.

Online Wills

Digital will-making platforms have become increasingly popular in Australia. These services typically:

  • Guide you through a questionnaire about your circumstances and wishes
  • Generate a legally-compliant will based on your responses
  • Provide instructions for proper signing and witnessing
  • Offer storage options and update reminders

Online wills combine convenience with legal compliance, though they may not be suitable for complex estates.

Will Kits

Will kits are pre-printed forms available from post offices, newsagents, and online. While inexpensive, they provide limited guidance and may not account for complex situations. If using a will kit, ensure you follow all instructions carefully, including proper signing and witnessing.

Mutual Wills

Mutual wills are made by two people (often spouses) who agree not to change their wills without the other’s consent. They contain mirror provisions and a binding agreement that neither party will revoke or change their will after the first person dies. These are different from “mirror wills,” which simply contain similar provisions but can be changed at any time.

What to Include in Your Will

A comprehensive will typically includes:

1. Executor Appointment

Your executor is responsible for administering your estate according to your wishes. This involves:

  • Locating and managing your assets
  • Paying any debts or taxes
  • Distributing your estate to beneficiaries
  • Handling any legal matters related to your estate

You should choose someone trustworthy, capable, and willing to take on this responsibility. Many people choose their spouse, an adult child, or a close friend. You can also appoint a professional executor like a solicitor or trustee company, though this typically involves fees.

2. Beneficiary Designations

Your will should clearly identify who will receive your assets. This includes:

  • Primary beneficiaries (those who receive specific gifts or portions of your estate)
  • Contingent beneficiaries (those who inherit if your primary beneficiaries cannot)
  • Details of any specific gifts or bequests
  • The residuary estate (what remains after specific gifts)

Be as specific as possible when naming beneficiaries and describing assets to avoid potential confusion or disputes.

3. Guardian Nominations

If you have children under 18, your will should nominate a guardian to care for them if both parents die. While a court makes the final decision based on the child’s best interests, your nomination carries significant weight.

When choosing a guardian, consider:

  • Their relationship with your children
  • Their values and parenting style
  • Their age and health
  • Their willingness and ability to take on this responsibility
  • Their location and living situation

It’s essential to discuss this decision with your chosen guardian beforehand.

4. Specific Gifts or Bequests

You may wish to leave specific items to particular people, such as:

  • Family heirlooms or jewellery
  • Vehicles
  • Real estate
  • Collectibles or items of sentimental value
  • Cash gifts to individuals or charities

Be sure to describe these items clearly to avoid confusion.

5. Funeral Wishes

While not legally binding, including your funeral preferences in your will can provide guidance to your family during a difficult time. You might specify:

  • Burial or cremation preferences
  • Details of any pre-paid funeral arrangements
  • Service preferences
  • Memorial donations in lieu of flowers

Consider discussing these wishes with family members as well, as your will may not be read until after funeral arrangements are made.

How to Create a Will in Australia

There are several ways to create a valid will in Australia, each with different costs, benefits, and suitability depending on your circumstances.

Using a Solicitor

Having your will drafted by a solicitor provides the highest level of legal protection and personalised advice. A solicitor can:

  • Assess your specific circumstances
  • Advise on complex matters like business succession or blended families
  • Ensure your will meets all legal requirements
  • Help with estate planning strategies
  • Store your will securely

Costs typically range from $300-$1000+ depending on complexity but this is very dependent on your specific circumstances.

Using an Online Will Service

Online will platforms offer a middle ground between DIY kits and solicitor-drafted wills. They provide:

  • Guided questionnaires that adapt to your situation
  • Legal templates updated to current legislation
  • Digital storage options
  • Reminder services for updates
  • Customer support

Costs typically range from $80-$250, with some services offering free updates for a period or lifetime.

Using a Will Kit

Will kits are the most affordable option but offer limited guidance and may not address complex situations. When using a will kit:

  • Follow all instructions exactly
  • Ensure proper signing and witnessing
  • Consider having the completed will reviewed by a legal professional
  • Store it in a safe place

Costs typically range from $30-$50.

Public Trustee Services

Each state and territory has a Public Trustee office that can help prepare your will. They offer:

  • Will preparation services (often free or low-cost)
  • Professional executor services
  • Secure will storage

While convenient and affordable, be aware that appointing the Public Trustee as your executor will incur fees when your estate is administered.

Making Your Will Legal: Signing and Witnessing

For your will to be legally valid in Australia, it must be properly executed. This means:

  1. The will must be in writing – either typed or handwritten
  2. You must sign the will at the end of the document
  3. Your signature must be witnessed by two people who:
    • Are both present at the same time when you sign
    • Are both 18 years or older
    • Are not beneficiaries under the will
    • Are not spouses/partners of beneficiaries
    • Have the capacity to understand what they’re witnessing
  4. The witnesses must also sign the will in your presence

Each page of the will should also be initialed by you and your witnesses, though this is not strictly required by law.

When to Update Your Will

Life changes, and your will should reflect your current circumstances. Consider reviewing and potentially updating your will when:

Major Life Events Occur

  • Marriage (which automatically revokes a will in most states)
  • Divorce or separation
  • Birth or adoption of children or grandchildren
  • Death of a beneficiary or executor
  • Significant changes in your financial situation
  • Purchase or sale of major assets
  • Moving interstate or overseas

Other Reasons for Updates

  • Changes in your wishes or priorities
  • Changes in tax laws or estate planning regulations
  • Executors or guardians becoming unable or unwilling to serve
  • Beneficiaries experiencing significant life changes
  • Every 3-5 years as a general practice

You can update your will by either:

  1. Creating a new will that revokes all previous wills
  2. Adding a codicil – a separate document that modifies specific provisions of your existing will (less common in modern practice)

Regardless of the method, any updates must meet the same formal requirements as the original will, including proper signing and witnessing.

Storing Your Will

Once you’ve created your will, it’s crucial to store it safely where it can be found when needed. Options include:

  • With your solicitor or the law firm that prepared it
  • With the Public Trustee in your state or territory
  • With your executor (providing them with a copy or letting them know where the original is kept)
  • In a secure place at home (ensuring your executor knows its location)
  • In a safety deposit box (though these can be sealed upon death)

Avoid storing your will in a bank safety deposit box unless someone else has access, as these can be difficult to access after death.

Some online will services also offer digital storage options, though you’ll still need the physical, signed original for probate purposes.

Whatever storage option you choose, make sure to:

  • Keep the original, signed document (not just a copy)
  • Tell your executor where your will is located
  • Keep it away from potential damage (water, fire, etc.)
  • Consider providing unsigned copies to key people for reference

Common Will Disputes and How to Prevent Them

Even carefully prepared wills can face challenges. Understanding common disputes can help you take preventative measures to protect your wishes and reduce the likelihood of family conflict after you’re gone.

Family provision claims represent the most common challenge to wills in Australia. These occur when eligible persons believe they haven’t received adequate provision from your estate. Each state and territory has legislation allowing certain family members to contest a will if they can demonstrate they haven’t been adequately provided for. Those who may be eligible to make such claims typically include spouses, de facto partners, children, and in some cases, other dependents or household members.

The court considers various factors when assessing these claims, including the relationship between the applicant and the deceased, the size of the estate, the financial needs of the applicant, and any moral obligations the deceased may have had. Courts try to balance respecting the deceased’s wishes with ensuring dependents are not left without support.

Disputes can also arise from allegations of undue influence, where someone questions whether the will-maker was pressured or manipulated into including certain provisions. Similarly, challenges based on lack of testamentary capacity question whether the will-maker fully understood what they were doing when creating the will. These challenges often focus on the will-maker’s mental state, particularly if they were elderly or unwell when the will was made.

Technical issues can invalidate wills even when the intentions are clear. Improper signing or witnessing, ambiguous language, or contradictory provisions can all lead to challenges that might require court intervention to resolve. This underscores the importance of ensuring your will meets all legal requirements and clearly expresses your intentions.

Preventing Will Disputes

Many factors can influence the likelihood of will disputes. While no approach can guarantee a will won’t be contested, certain practices may help reduce the possibility of family conflict after death.

Explaining decisions clearly, either in a will or in a separate letter of wishes, can provide context. While not legally binding, a letter explaining reasoning can help beneficiaries understand choices and may reduce the likelihood of challenges. For significant deviations from what family members might expect, this transparency can be particularly important.

Some individuals choose to discuss their intentions with family members during their lifetime. Though potentially uncomfortable, these conversations can prevent shock and confusion later. They also provide an opportunity to explain reasoning directly and address any concerns before they escalate into legal disputes.

Those anticipating challenges might benefit from consulting with an estate planning specialist who can discuss specific strategies for particular situations. These might include establishing trusts, making lifetime gifts, or using binding financial agreements to create more certainty. Professional guidance can be especially valuable when family dynamics are complex or when substantial assets are involved.

When testamentary capacity might be questioned later, some individuals choose to document their capacity. This might involve having a doctor provide a written assessment or having a solicitor take detailed notes about understanding of the will. Such documentation can serve as evidence if capacity is later challenged.

Regular reviews and updates to wills help ensure they remain current with circumstances and wishes. Outdated wills that don’t reflect significant life changes may be more likely to cause family confusion. A current will that clearly addresses present situations provides stronger evidence of intentions.

The Probate Process in Australia

After someone passes away, their will typically goes through a legal process called probate before assets can be distributed to beneficiaries. Understanding this process helps set realistic expectations about timeframes and requirements.

Probate refers to the legal procedure where the Supreme Court validates a will and authorizes the executor to administer the estate according to its terms. This formal recognition gives the executor legal authority to collect assets, pay debts, and distribute property to beneficiaries. Not all estates require probate—small estates or those where assets were jointly held may be able to be administered without it.

The process begins when the executor (or their solicitor) lodges an application with the Supreme Court in the relevant state or territory. This application includes the original will, a death certificate, an inventory of assets and liabilities, and various court forms. The exact requirements vary by jurisdiction, but all require formal documentation of the deceased’s assets and details of the proposed executor.

Processing times for probate applications vary significantly depending on the court’s workload and the complexity of the estate. Generally, straightforward applications might be processed within 2-6 weeks, but more complex cases can take months. During this waiting period, the executor can begin preliminary work like securing assets and notifying institutions, but cannot distribute assets until probate is granted.

Once probate is granted, the executor receives a document called a “Grant of Probate” which serves as legal proof of their authority to act on behalf of the estate. With this document, they can access bank accounts, transfer shares, sell property, and otherwise manage the deceased’s assets. Financial institutions and government agencies require this document before allowing access to accounts or processing transfers.

The executor must then collect all assets, pay outstanding debts and taxes, and prepare financial statements before distributing the remaining assets to beneficiaries. This phase can take several months or even years for complex estates. Executors have legal obligations to act in the best interests of the estate and can be personally liable if they distribute assets improperly.

Estate Administration Without a Will

When someone dies without a valid will, they die “intestate,” and a slightly different process applies. Instead of probate, the court issues “Letters of Administration” to an administrator (usually the next of kin) who then distributes the estate according to a formula set by state legislation.

This intestacy formula typically prioritizes spouses and children, followed by parents, siblings, and other relatives. The process tends to be more complicated, time-consuming, and expensive than administering an estate with a valid will. It also provides no opportunity for personal wishes to be considered or for assets to go to friends, carers, or charities.

Special Considerations for Blended Families

Creating a will becomes particularly important—and often more complex—for blended families. With multiple marriages, step-children, and various family obligations, careful planning is essential to balance competing interests and prevent disputes.

In blended families, the default intestacy rules rarely align with what most people would want. Without a will, step-children typically have no automatic inheritance rights unless legally adopted, even if you’ve raised them as your own. Meanwhile, current spouses usually receive the majority of the estate, which can inadvertently disinherit children from previous relationships. This mismatch between legal defaults and family expectations makes having a clear will absolutely essential.

Standard will arrangements may not be sufficient for the complexities of blended families. Many people in this situation benefit from more sophisticated estate planning tools that provide both for current partners and children from previous relationships. Testamentary trusts, life interests, and binding financial agreements can all help create more nuanced arrangements that protect everyone’s interests. These structures can provide ongoing support for a current spouse while preserving capital for children’s future inheritance.

The potential for conflict is often higher in blended families, particularly between the current spouse and children from previous relationships. Clear communication about your intentions, both in your will and through family discussions, can help reduce misunderstandings and resentment. Being transparent about your reasoning doesn’t guarantee everyone will be happy with your decisions, but it can help them understand the thinking behind them.

Many people in blended families choose to seek specialized legal advice from solicitors experienced in this area. These professionals can suggest strategies tailored to your specific family dynamics and asset structure. While this might involve higher upfront costs, it can prevent much more expensive disputes after your death.

Digital Assets and Your Will

In today’s digital world, consider what happens to your online presence and digital assets after you die. These might include email accounts, social media profiles, cryptocurrency, digital photos, online gaming accounts, subscription services, and other valuable or sentimental digital content.

Unlike physical assets, digital assets present unique challenges for estate planning. Access often depends on passwords and terms of service agreements rather than physical possession or legal ownership. Many digital platforms have their own policies regarding deceased users, which may override or complicate your will’s instructions. For example, some services provide legacy contact options or memorialization, while others simply close inactive accounts after a certain period.

When planning for digital assets, start by creating a comprehensive inventory of your accounts, including login details and instructions for each. Rather than including passwords directly in your will (which becomes a public document during probate), consider using a password manager and providing access instructions to your executor separately. Some online will services now offer digital asset vaults specifically designed for this purpose.

Consider including specific directions in your will about what should happen to different types of digital assets. You might want some accounts closed, others memorialized, and the content of others downloaded and saved for family members. Be aware that your executor’s legal authority to access your accounts may be limited by platform policies and privacy laws, so providing clear authorization in your will can help overcome some of these barriers.

For valuable digital assets like cryptocurrency, NFTs, or monetized content, proper planning becomes even more crucial. Without access information and clear instructions, these assets could be permanently lost. Consider working with specialists who understand both estate law and digital assets to ensure these valuable items are properly addressed in your estate plan.

State and Territory Differences

While the general principles of will-making apply across Australia, important differences exist between state and territory legislation. These variations can affect everything from witnessing requirements to who can contest your will and how your estate is distributed if you die intestate.

New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory, and the Northern Territory each maintain their own succession laws. These jurisdictions differ in areas such as the specific categories of people who can make family provision claims and the time limits for contesting a will. For example, in Victoria, step-children can make claims in certain circumstances, while in Queensland, the rules for de facto relationships may differ from other states.

The intestacy formulas—which determine how assets are distributed when there’s no will—also vary between jurisdictions. These differences particularly affect how assets are split between spouses and children, as well as the inheritance rights of de facto partners. The variations become even more significant for blended families or those with complex relationships.

If you own property in multiple states or territories, you should consider how these jurisdictional differences might affect your estate planning. In some cases, it may be necessary to have separate wills for assets in different jurisdictions, especially for international property. Moving interstate should always trigger a review of your existing will to ensure it remains valid and effective under your new state’s laws.

Given these regional variations, seeking advice from a legal professional familiar with the specific laws in your jurisdiction can provide valuable peace of mind. This becomes especially important if your circumstances involve interstate or international elements, or if you anticipate potential challenges to your will.

Conclusion: Understanding Will Creation

A will isn’t just a legal document—it represents care and responsibility toward loved ones. While contemplating end-of-life matters may feel uncomfortable, leaving family members to navigate complex legal processes during their time of grief without guidance can be more difficult.

Every adult Australian, regardless of age or wealth, may benefit from having an up-to-date, legally valid will. Whether just starting out in life, raising a family, or enjoying retirement, a will ensures wishes are known. It provides clarity when clarity is most needed and can help prevent unnecessary stress, expense, and conflict.

The process of creating a will involves considering what matters most—who to provide for, who to trust to handle affairs, and any specific wishes for assets. From there, individuals can explore the approach that best suits their circumstances, whether that’s consulting a solicitor, using an online service, or another method discussed in this guide.

It’s worth noting that wills can be updated. As life circumstances change, wills can be revised to reflect current situations and wishes. Regular reviews help ensure estate plans remain aligned with what matters most.

At Legasy, we believe everyone deserves the peace of mind that comes from having affairs in order. We hope this guide has provided helpful information about wills in Australia. Creating a will represents not just putting a legal document in place—it creates an expression of care for those who matter most.

Remember: This guide provides general information only. For advice tailored to your specific circumstances, please consult with a qualified legal professional in your state or territory.

Frequently Asked Questions

How much does making a will in Australia typically cost?

The cost varies depending on the method chosen. Will kits typically cost $30-$50, online will services range from $80-$250, and solicitor-drafted wills start around $300 for simple wills and can exceed $1,000 for complex situations. Some Public Trustee offices offer free or low-cost will preparation services.

Can a person write their own will without professional help?

In Australia, it is legally possible to write a will without professional assistance. However, homemade wills must still meet all legal requirements for validity, including proper signing and witnessing. Self-written wills may contain errors or ambiguities that could lead to problems later. For anything beyond the simplest situations, many people find professional guidance beneficial.

How do marriage or divorce affect existing wills?

Marriage automatically revokes a will in most Australian states and territories unless the will was made in contemplation of that specific marriage. Divorce typically revokes any provisions in favor of a former spouse but leaves the rest of the will intact. These rules vary by jurisdiction, so reviewing a will after any major relationship change is often prudent.

What factors might be considered when choosing an executor?

An executor ideally would be someone trustworthy, organized, reasonably financially literate, and willing to take on the responsibility. Many people choose their spouse, an adult child, or a close friend. Professional executors like solicitors or trustee companies are another option, though these typically involve fees. Appointing a substitute executor is often recommended in case the first choice is unable or unwilling to serve when needed.

How frequently are will reviews recommended?

Many legal professionals suggest reviewing a will every 3-5 years and after any major life event such as marriage, divorce, having children, significant changes in financial circumstances, or moving interstate. Regular reviews help ensure a will continues to reflect current wishes and circumstances.

Can wills be legally challenged after death?

Yes, certain eligible persons (typically family members and dependents) can challenge a will through a family provision claim if they believe they haven’t been adequately provided for. The success of these claims depends on various factors including the challenger’s relationship to the deceased, their financial needs, and the size of the estate. Other potential challenges include claims of undue influence or lack of testamentary capacity.

How is superannuation typically handled after death?

Superannuation generally doesn’t automatically form part of an estate and isn’t directly controlled by a will. Instead, it’s typically distributed according to the super fund’s rules and any binding death benefit nomination that was made. Without a binding nomination, the super fund trustee decides how to distribute benefits, though they often consider will provisions and circumstances. For more control, many individuals make binding death benefit nominations with their super fund alongside their will.

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Disclaimer: This information is general in nature. Laws regarding wills and estates vary by state and territory in Australia. For specific advice, please consult a qualified legal professional in your jurisdiction.