Do I Need a Will? A Complete Guide

Why You Need a Will

A will is a legal document that sets out how your assets should be distributed after your death. If you die without a valid will, you die intestate, and your estate is distributed according to the intestacy laws of your state or territory. These laws follow a fixed hierarchy — spouse first, then children, then parents, then siblings — which may not reflect your personal wishes or family situation.

Without a will, your executor is not your choice but is appointed by the court. If you have minor children, the court also decides who cares for them. Intestacy can also create unnecessary delays, additional costs, and family disputes. In all Australian states, if no eligible relatives can be found, your estate passes to the Crown (the state government).

Legal Requirements for a Valid Will

While each state and territory has its own wills legislation, the core requirements are consistent across Australia. You must be at least 18 years old (or married), have testamentary capacity (understand what a will is, what you own, and who has a claim on your estate), and act voluntarily without pressure. The will must be in writing (typed or handwritten), signed by you at the end of the document, and witnessed by two independent adult witnesses who are present together and who should not be beneficiaries.

Key state-by-state differences include whether marriage automatically revokes an existing will (it does in NSW, Victoria, Queensland, WA, Tasmania and the NT, but not in South Australia or the ACT). Family provision claim deadlines also vary, ranging from 3 months (Tasmania) to 12 months (NSW, NT) from the grant of probate or date of death. If you move interstate, your will generally remains valid but should be reviewed to ensure it aligns with local laws.

DIY vs Professional Legal Advice

You are not legally required to use a lawyer to make a will. DIY will kits and online will services are available and can produce a valid will if all formal requirements are met. For straightforward estates with few assets and no dependants, a DIY will may be sufficient. However, any errors in signing, witnessing, or wording can render the will invalid or open to challenge, leading to costly court proceedings.

Professional legal advice is strongly recommended if you have a blended family, own a business, have assets in multiple states or overseas, want to set up trusts, have dependants with special needs, or are concerned about potential challenges to your will. A solicitor typically charges $400–$1,500 for a standard will depending on complexity and location. The cost is modest compared to the potential expense and stress of resolving an invalid or contested will after your death.

Frequently Asked Questions

What happens if I die without a will?
Your estate is distributed according to intestacy law. Your spouse receives a fixed amount plus a share of the remainder (the exact split depends on your state). If you have no spouse or children, the estate goes to parents, then siblings, then more distant relatives. If no relatives are found, the estate passes to the state government.

Does marriage or divorce affect my will?
In most states, marriage automatically revokes your existing will unless it was made in contemplation of that specific marriage. Divorce revokes gifts and appointments to your former spouse (they are treated as having predeceased you), but the rest of the will remains valid. South Australia and the ACT do not automatically revoke a will upon marriage.

How often should I update my will?
Review your will every 3–5 years, or immediately after major life events: marriage, divorce, birth of a child or grandchild, buying a home, starting a business, receiving an inheritance, or moving interstate. An outdated will may not reflect your current wishes or family circumstances.

Where should I keep my will?
Keep your will in a safe, accessible place. Options include your solicitor's office (usually free storage), the Public Trustee, a home safe (tell your executor where), or a safety deposit box. Your executor must be able to find the original will after your death — a copy is not sufficient for probate.

What Happens If You Die Without a Will

If you die without a valid will in Australia, your estate is distributed according to the intestacy laws of your state or territory. These laws follow a set formula that may not reflect your wishes. Generally, the estate goes to your spouse and children in defined proportions, but the exact distribution varies by jurisdiction. If you have no spouse or children, it may go to parents, siblings, or more distant relatives. If no relatives can be found, the estate passes to the state government. The process of administering an intestate estate is also more complex, time-consuming, and expensive, requiring the appointment of an administrator and potentially a bond.

More concerning is the impact on blended families. If you have a partner but children from a previous relationship, intestacy laws may not provide the outcomes you intend. For example, in some states, the spouse receives the first portion of the estate plus a share of the remainder, with children receiving the balance. This can leave your children with less than you intended, particularly if the family home forms a large part of the estate. A properly drafted will allows you to specify exactly how your assets should be distributed and can incorporate testamentary trusts to protect your children's inheritance.

Key Components of a Valid Will

A valid will in Australia must meet several legal requirements: it must be in writing, signed by you (the testator) in the presence of two witnesses who are not beneficiaries, and signed by both witnesses in your presence. While DIY will kits are available, they carry risks if not properly executed or if they do not account for your specific circumstances. A solicitor-drafted will typically costs $200-$600 for a simple will and offers peace of mind that your wishes will be legally effective.

Key elements to consider in your will include: who will be your executor (the person responsible for administering your estate), guardians for minor children, specific gifts (particular assets to particular people), residual gifts (the remainder of the estate), an alternative distribution if beneficiaries predecease you, and consideration of testamentary trusts (which can provide asset protection and tax flexibility for beneficiaries). Your financial adviser can help you think through these decisions, but a solicitor should draft the actual legal document.