The legal framework
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.
The single most useful action in Australia is to check the beneficiary designations attached to pensions, retirement savings and life insurance. They pass outside the will, they override it, and they are almost never updated after a separation or a remarriage.
Intestacy is not a neutral default. It distributes according to a statutory formula that rarely matches what a couple would have chosen, and it makes no provision at all for step-children, unmarried partners in some jurisdictions, or a business that needs to keep trading.
Cross-border assets complicate everything. A holiday home or an account abroad usually requires a separate procedure in that country, and the two systems may disagree about which law applies. Taking advice before buying abroad is far cheaper than resolving it afterwards.
Key points
| 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 |
In practice
- Locate the will and apply for the grant, letters of administration or local equivalent.
- Value the estate, including assets that pass outside it by nomination or survivorship.
- Advertise for creditors where the law requires it, and settle debts before distributing.
- File the tax returns that death triggers, and obtain any clearance required.
- Distribute only after the claim period has expired, and keep a signed distribution account.
Cost and coverage
Court fees are modest; professional costs are not, and in a contested estate they routinely exceed what is in dispute. Where an inheritance or estate tax exists, the exemptions matter more than the headline rate. Assets passing outside the estate — pensions, insurance, joint accounts — are usually the largest items and the least reviewed.
Recent changes
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.
Where to go
- Probate court or registry with jurisdiction over the estate
- Revenue authority, for the returns and clearances that death triggers
- Law society or bar association referral service
- Banks, insurers and pension administrators, for assets passing outside the estate
- Civil registry, for the death certificate and proofs of relationship
Worth knowing
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.
Frequently asked questions
Who inherits if there is no will?
The statutory order: surviving spouse or partner and children first, then other relatives in the sequence set by the legislation.
Do pensions and life insurance form part of the estate?
Usually not. They pass to the person named on the nomination form, which overrides the will.
How long does administration take?
Commonly six to eighteen months for an uncontested estate, considerably longer where there is a dispute or assets abroad.
Can a will be challenged?
Yes, on capacity, undue influence or formality, and in most of these jurisdictions by a dependant seeking provision. Time limits are short and strictly applied.
Official sources and links
- Federal Register of Legislation — Commonwealth law as made and in force
- Services Australia — government services and payments