How the law is organised
Each state and territory has its own succession act, and all allow family provision claims by a spouse, de facto partner, child or other eligible person who was not adequately provided for. Death duties were abolished across Australia by 1979, so there is no inheritance tax, although capital gains tax can apply on later disposal. The critical practical point is superannuation: a death benefit is not automatically part of the estate and is paid according to a binding death benefit nomination or at the trustee's discretion.
In Australia, the first thing worth doing is to read the beneficiary designations on pensions, retirement savings and life insurance. They bypass the will and prevail over it, yet hardly anyone revises them after a separation or a new marriage.
Dying without a will is not a neutral outcome. A fixed statutory formula decides who receives what, seldom what a couple would have wanted, and it ignores step-children, in some places unmarried partners, and a business that has to carry on.
Holdings outside Australia complicate matters, because a holiday home or bank account overseas generally needs its own procedure in that country, whose courts may apply a different law from the one an Australian court would choose. Advice taken before buying abroad costs a fraction of a later clean-up.
At a glance
| Law | State and territory succession acts |
|---|---|
| Family provision | Claims available to spouses, de facto partners, children and other eligible persons |
| Death duties | None since 1979 |
| Superannuation | Paid under a binding nomination or trustee discretion, usually outside the estate |
| De facto partners | Recognised as eligible claimants and, in most states, on intestacy |
| Probate | Granted by the Supreme Court of the state |
Practical steps
- Find the will, then apply for the grant, letters of administration or the local equivalent.
- Put a value on the estate, counting assets that pass outside it by nomination or survivorship.
- Where the law demands it, give notice to creditors, and pay the debts before any distribution.
- Submit the tax returns that the death makes necessary and get any clearance needed.
- Wait until the claim period has run out before distributing, and keep a signed account of the distribution.
What it costs and who pays
Registry fees for an Australian grant are modest; the expense lies in legal costs, which in a disputed family provision claim can outgrow the amount being argued over. With no death duties since 1979, the tax question is usually capital gains on a later sale. Superannuation, insurance and joint accounts often hold most of the wealth, pass outside the estate, and are the least checked.
What has changed lately
Courts have continued to expand who counts as an eligible person for family provision, and legal costs in contested estates have prompted calls for reform.
Who to contact
- The probate court or registry that has jurisdiction over the estate
- The tax authority, for the returns and clearances a death requires
- A lawyer referral service run by the law society or bar association
- Banks, insurers and pension administrators, who deal with assets outside the estate
- The civil registry, which issues the death certificate and proof of family ties
Good to know
A binding death benefit nomination usually lapses after three years unless it is non-lapsing: an out-of-date nomination is one of the most common causes of superannuation going to the wrong person.
Common questions
Who inherits if there is no will?
The order is set by statute: the surviving spouse or partner and the children come first, then other relatives in the sequence the legislation lays down.
Do pensions and life insurance form part of the estate?
Generally no. They go to whoever is named on the nomination form, and that designation prevails over the will.
How long does administration take?
Typically six to eighteen months when nobody contests, and a good deal longer if there is a dispute or assets overseas.
Can a will be challenged?
Yes: on grounds of capacity, undue influence or formal defects, and in most such jurisdictions by a dependant seeking provision. Deadlines are short and strictly enforced.
Official sources
- Federal Register of Legislation — Commonwealth law as made and in force
- Services Australia — government services and payments