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Australia Property Inheritance Law

Legislation enacted in each state and territory governs Australia property inheritance law. Although the law differs across jurisdictions, there is also significant commonality in the rules around property inheritance. For instance, in all Australian jurisdictions, it is possible for a testator to leave their assets to anyone they choose in their will. Across Australia, a legal will is the only mechanism through which a testator can control who inherits their estate. Wills are also the way that a testator nominates an executor, a trusted individual who carries out the last wishes of the deceased. In Australia, wills are designed for the distribution of property, including the establishment of trusts and charitable donations. However, people do often use a will as a convenient, but not binding, way to convey other last wishes, such as arrangements for funerals or burials, or their preference regarding the custody of their children or care of pets. Where there is no valid will, the estate is distributed according to the intestacy law of the state or territory where the deceased lived.

Key Terms in Australia Property Inheritance Law

To understand Australian property inheritance law, it is necessary to become familiar with the key terms that are used in succession law.

Estate: An individual’s financial and material assets, including any debts or liabilities. An estate includes the right to claim something in the future.

Deceased: Person who has died.

Testator/Testatrix: an individual who makes a will.

Beneficiary: Person who receives a gift or benefit under a will

Intestate: The result of dying without a will

Partially Intestate: The result of a will not accounting for all of the deceased’s assets at the time of their death.

Executor: The person who executes the wishes expressed in a will.

Will: A legal document which outlines how a person wishes to have their estate distributed upon their death.

Grant of Probate: The authority given by a court to an executor to follow the directions of a Will.

Administrator: A person who is appointed by the court to deal with the intestate estate.

Next of kin: A person’s closest living blood relative or relatives.

Australian Property Inheritance Law

Under Australian property inheritance law, someone who dies without a will has no control over the distribution of their assets. For this reason, solicitors highly recommend that any competent person over the age of 18 should make a valid will, even if they do not have extensive assets to bequeath.

To meet the formalities of a legally valid will, the document must be signed by the testator and properly witnessed. Witnesses cannot be beneficiaries of the estate, and cannot be the spouse of the testator. Witnesses have to sign a will in the presence of the testator, and each other. If a will is not legally made, it can be challenged, and if the challenge is successful, the laws of intestacy will determine the distribution of the estate.

Engaging a solicitor to draw up a will is the safest way to pre-empt a challenge of the validity of a will. An alternative to employing a private solicitor is to apply to the Public Trustees, who operate under state or territory government authority. The Public Trustee offers independent and professional services, and their fees are largely government regulated, depending upon the complications of the estate and whether they are also acting as the executor.

A will should be updated whenever there is a change in personal circumstances. People often try to update their own wills by crossing out information or inserting new lines, but an update should always be completed by a legal professional or Public Trustee to verify that the new will is valid. Every will should be updated after a marriage, divorce or separation, and particularly after the end of a de facto relationship. A will should also be updated after the birth of a child or grandchild, or upon the death of a partner or other beneficiary. Any significant changes in financial circumstances should be noted, including the disposal of any assets specifically listed in the will. When a solicitor competently drafts a will, it should contemplate such changes in circumstance, so that the will does not need to be updated as often.

When someone dies without a will, legislation in each jurisdiction establishes the order that outstanding debts and taxes are discharged, and then the formula by which the remaining assets of the estate are distributed to family members. This formula differs between states and territories but essentially benefits a spouse first, followed by any children and then more distant relatives. When the deceased has no family, the assets of the estate will revert to the crown.

For more information on Australian property inheritance law, or for any other legal advice or support, please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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