Making a Will in Australia: Why You Need One and What Makes It Valid

Why make a will?

If you die without a will — intestate — your assets will be distributed according to your state’s intestacy laws, not your wishes. This can mean:

People you intended to provide for receive nothing or a reduced share.
Family disputes about who receives what.
No guardian nominated for minor children — a court decides.
Your estate may take longer and cost more to administer.

A will also lets you appoint an executor — someone you trust to carry out your wishes efficiently and legally.

Who should have a will?

Every adult in Australia over 18 with assets or preferences about what happens after they die — which covers most people. Common situations that make a will especially important:

You have minor children — a will lets you nominate a guardian if both parents die.
You own property or significant financial assets.
You have a blended family (ex-spouses, stepchildren, children from previous relationships).
You want to provide for people outside the automatic intestacy order (a partner you’re not married to, close friends, charities).

What makes a will valid?

For a will to be legally valid in Australia:

Age: the person making the will (the “testator”) must be 18 or older (limited exceptions apply for married persons under 18 or military personnel — state-dependent).
Testamentary capacity: you must be mentally capable at the time of signing — understanding what you’re doing, what assets you have, and who your beneficiaries are.
In writing: verbal wills have no legal force in Australia (with very limited exceptions).
Signed in the presence of two witnesses simultaneously. The witnesses must both be present when you sign.
Witnesses must not be beneficiaries (or married/in a de facto relationship with a beneficiary) — if they are, the gift to that witness may be voided even if the rest of the will stands.
Witnesses sign the will in your presence.

Choosing an executor

Your executor is responsible for:

Applying for probate (court confirmation that the will is valid), where required.
Collecting and managing your assets.
Paying outstanding debts and taxes.
Distributing assets to beneficiaries as directed.

Choose someone trustworthy, organised, and willing to deal with banks, lawyers, and government agencies. Common choices: spouse, adult children, or a trusted friend. A solicitor can act as executor for a fee. Consider appointing a backup executor in case your first choice is unable or unwilling to act.

Probate

Probate is the court process that formally validates a will and authorises the executor to act. Not every estate requires it — it depends on the value and type of assets. Banks and land registries typically require probate before releasing large assets or registering property transfers. Your executor or a solicitor can advise whether probate is needed.

Superannuation is NOT covered by your will

This is one of the most common misconceptions. Your superannuation balance does not automatically pass under your will. Super is held in trust by your super fund, and how it is distributed on death is governed by the fund’s rules and your Binding Death Benefit Nomination (BDBN).

Without a valid BDBN in place, your super fund’s trustee has discretion over who receives your super — and may not choose the same people as your will. Make sure you have an up-to-date BDBN with your super fund, and review it whenever your circumstances change.

DIY kits vs a solicitor

Will kits (available at post offices and newsagents): legally valid if completed correctly. Suitable for straightforward situations — small number of clear beneficiaries, no complex assets.

A solicitor is advisable if:

You have property in multiple states or countries.
You have a blended family or complex family dynamics.
You own business assets or company shares.
You want to set up a testamentary trust for minor children.
You’re concerned about someone challenging the will.

Cost for a simple will with a solicitor: typically $200–$500 depending on complexity and state.

When to update your will

In many Australian states, marriage automatically revokes a previous will (unless the will was made in contemplation of that specific marriage). Divorce revokes gifts to an ex-spouse and removes them as executor in most states.

Review and update your will after:

Marriage or divorce.
Birth or adoption of a child or grandchild.
Significant change in assets (buying property, selling a business).
A beneficiary or executor dies.
Estrangement from a beneficiary.

As a general practice: review your will every 3–5 years.