Australia (AU)
Australia is the world's sixth-largest country by area and one of the most urbanised nations on Earth, with over 85% of its 27 million people living in coastal cities.
Estate & Inheritance in Australia
Wills, intestacy, inheritance tax, and cross-border estate planning for expats.
Australia has no inheritance tax or estate duty at the federal level — it was abolished in 1979. However, inherited assets may trigger capital gains tax (CGT) when eventually sold if they were acquired after 20 September 1985, and superannuation death benefits are taxed depending on who receives them. Each Australian state and territory has its own laws on wills, probate, and succession. For expats, the key issues are: (1) Australian intestacy law may not distribute assets as you intend; (2) SMSF binding death benefit nominations must be current and valid; (3) international estate planning requires coordination across jurisdictions.
Intestacy — What Happens Without a Will
If you die without a valid will, the intestacy laws of each state and territory apply to assets in that jurisdiction. The general order varies slightly by state: surviving spouse/de facto partner generally takes the majority of the estate (and all of it if no children); children share the remainder if the spouse takes only a portion; if no spouse or children, parents, then siblings inherit. De facto partners in all states have rights equivalent to married spouses under intestacy laws. Unmarried partners in relationships of less than 2 years (in some states) may not qualify. Children from previous relationships may receive less under intestacy than under a will — a well-drafted will is essential for blended families.
Types of Valid Will
Formal (Witnessed) Will
Formal WillThe standard will in Australia — printed or typed, signed by the testator in the presence of two independent adult witnesses who both sign in the testator's presence. Witnesses must not be beneficiaries or spouses of beneficiaries, or they forfeit their gift (in most states). The most widely used form.
Valid in all Australian states and territories if witnessing requirements are met. An interstate or overseas will is generally recognised if valid under the law of the place where it was made.
Store the original will safely — with a solicitor, in a bank safe-deposit box, or with the Public Trustee. Tell your executor where it is. A will that cannot be found is treated as no will. Many solicitors offer free or low-cost will storage. Consider registering with the Will Registry at willregistry.com.au.
Testamentary Trust Will
Testamentary Trust WillA will that establishes one or more trusts on death, allowing the trustee to distribute income and capital to beneficiaries at their discretion. Provides significant tax flexibility (income can be streamed to lower-tax-rate beneficiaries) and asset protection. Strongly recommended for estates over $500,000 or where there are minor children.
Valid will incorporating a trust deed. The trust comes into existence upon death.
Key benefit: a testamentary trust allows children under 18 to receive up to the adult tax-free threshold ($18,200/year) from trust income — far better than the minor's tax rate (up to 66% on investment income). Annual trust accounting costs apply ($1,500–$3,000/year).
Holograph (Handwritten) Will
Holograph WillA will entirely in the testator's own handwriting, signed and dated. Requires no witnesses in most Australian states. Recognised but disfavoured — courts are more willing to admit it to probate but it is easier to challenge.
Recognised in most Australian states. May require court application for probate in some jurisdictions.
Not recommended as a permanent solution. Use only in an emergency. State laws differ on whether unsigned or partially typed holograph wills are valid. Always replace with a formally witnessed will as soon as practicable.
Forced Heirship
Australia does not have a civil law forced heirship system like France or Germany. However, all Australian states and territories have Family Provision legislation that allows certain eligible persons — spouses, de facto partners, children (including adult children), and in some states stepchildren and other dependants — to apply to a court for further provision from an estate if they were inadequately provided for. Courts have broad discretion and regularly award further provision to adult children who can show financial need or a moral claim. An estate can be challenged up to 12 months after death (time limits vary by state). Proper estate planning with a solicitor minimises (but cannot fully eliminate) the risk of a successful Family Provision claim.
EU Succession Regulation (Brussels IV)
The EU Succession Regulation (Brussels IV) does not apply to Australia — Australia is not a member of the EU. For expats with assets in EU countries and Australia, the law that governs their estate will depend on: (1) which country's courts have jurisdiction (typically where the deceased was habitually resident); (2) any choice of law clause in a valid will; and (3) the conflict-of-law rules of each jurisdiction where assets are held. Australian real property (land and houses) is always governed by Australian law regardless of the owner's domicile. For significant international estates, specialist cross-border estate planning advice is essential — an Australian estate planning solicitor and an EU-qualified estate lawyer should both be engaged.
Inheritance Tax
Australia has no federal inheritance tax or estate duty. Assets passing to beneficiaries on death are not taxed in the hands of the recipient at the time of inheritance. However, capital gains tax (CGT) deferred liability can arise: (1) the beneficiary "steps into the shoes" of the deceased for assets acquired after 20 September 1985 — when the beneficiary eventually sells, CGT is calculated on the gain since the deceased's acquisition, not since the date of inheritance; (2) main residence exemptions apply in certain circumstances; (3) pre-CGT assets (acquired before 20 September 1985) pass to beneficiaries CGT-free and retain their pre-CGT status. Superannuation death benefits are not part of the estate — they are paid according to binding or non-binding death benefit nominations and may be subject to tax depending on the recipient.
| Relationship | Tax-Free Allowance | Tax Rate (above allowance) |
|---|---|---|
| Spouse / de facto partner | No inheritance tax. Super benefits: tax-free. | 0% inheritance tax. CGT may apply on eventual sale. |
| Adult children (financially independent) | No inheritance tax on inherited assets. | 0% inheritance tax. Super death benefits: 17% tax if from taxed element. |
| Minor / dependent children | No inheritance tax. | 0% inheritance tax. Super death benefits: tax-free to financial dependants. |
| Other beneficiaries (friends, distant relatives) | No inheritance tax. | 0% inheritance tax. Super benefits: 17–32% (taxed and untaxed elements). |
Superannuation is the key tax issue in Australian estate planning. Super does not form part of the deceased estate unless specifically directed to the estate. A binding death benefit nomination (BDBN) directs the trustee to pay the super balance to a specific person or to the estate. BDBNs expire after 3 years (most funds) unless the fund rules allow non-lapsing nominations — check and renew regularly. Payment to a spouse, minor child, or financial dependant is tax-free. Payment to an adult independent child is subject to 15–17% tax on the taxable component. 2026 CHANGE — Division 296 Tax: from 1 July 2026, members with a Total Superannuation Balance (TSB) above $3 million pay an additional 15% tax on superannuation earnings attributable to balances above $3M (25% above $10M). Division 296 passed into law March 10, 2026. Estate planning implication: surviving spouses who receive a death benefit may unexpectedly breach the $3M threshold — review super structure and binding nominations before 30 June 2026.
Cross-Border & Multi-Country Estates
Expats with assets in multiple countries face complexity. Key Australian issues: (1) An Australian will covers all Australian assets including real property, bank accounts, shares, and personal property — it does not automatically govern assets in other countries. A separate will in each major jurisdiction is often recommended. (2) Probate of an Australian will must be obtained from the Supreme Court of the relevant state — overseas beneficiaries can appoint a local attorney to manage this. (3) If you are a non-Australian domiciliary at death, Australian real property and assets still require an Australian grant of probate or letters of administration. (4) Foreign residents who inherit Australian assets may face withholding tax issues on certain distributions. Engage a specialist with cross-border estate experience — Australian expatriate tax lawyers or international estate planning solicitors.
Certificate of Inheritance
Australia does not issue a single "certificate of inheritance." Instead, the executor named in the will applies for a Grant of Probate from the Supreme Court of the state where the deceased was domiciled. If there is no will, the administrator applies for Letters of Administration. These documents authorise the executor/administrator to deal with the estate. Banks, the share registry, and the Titles Office (for real property) require certified copies of the Grant of Probate before releasing or transferring assets. Application: filed with the Supreme Court of the relevant state. Required documents: death certificate, original will, inventory of assets and liabilities, and an executor's affidavit. Costs: court filing fee based on estate size ($1,000–$5,000+); solicitor fees ($2,000–$8,000+ depending on complexity). Processing: 4–12 weeks.
Will Registration
Australia does not have a single national will registry. Each state has its own Public Trustee office that can store wills and is searched on application. A private national registry, Will Registry (willregistry.com.au), allows registration of the existence (not the contents) of a will and can be searched by executors and solicitors after death. Strongly recommended: tell at least two people (your executor, and a trusted family member) where your original will is kept. Many solicitors store wills for free as a client service.
Living Will & Healthcare Power of Attorney
Australia uses Advance Care Directives (also called Advance Health Directives or Advance Care Plans) to record medical treatment preferences for a time when you cannot communicate. Rules and names vary by state: Advance Health Directive (QLD), Advance Care Directive (SA, NT, ACT), Advance Care Plan (VIC, NSW, WA). An Enduring Power of Attorney (financial decisions) and Enduring Guardianship (personal/medical decisions) are separate documents that appoint someone to act on your behalf if you lose capacity. All states recognise these instruments — have them prepared by a solicitor. Store copies with your GP, hospital, and family. The My Health Record system allows your Advance Care Document to be uploaded and accessed by any treating health professional nationally.
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Estate & Inheritance
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