Wills and Powers of Attorney — Intestacy Rules and State-by-State Requirements
If you die in Australia without a will, each state's statutory intestacy rules apply. We cover just the essentials migrants need: what makes a will valid, official Public Trustee services, and enduring powers of attorney.
Wills and powers of attorney — why they matter even more for migrants
A will is a document that legally records how your assets are to be distributed after death and who should be guardian of your minor children; a power of attorney appoints someone to make financial and legal decisions on your behalf while you are alive. In Australia, inheritance and guardianship are governed by state and territory law, not federal law, so the rules depend on where you live. For migrants whose families are overseas, having no will can severely delay administration or result in a distribution different from what you intended — which makes preparing in advance especially worthwhile.
Will vs power of attorney — they take effect at different times
A will takes effect after death, while a power of attorney operates during your lifetime (it ceases to have effect when you die). The two documents are not substitutes — they are a set to prepare together. Add the separate scheme for medical and personal decisions (such as enduring guardianship — names and schemes differ by state, so official confirmation is needed) and you are covered across the whole span of accidents, illness and death.
What makes a will valid, and official ways to make one
For a will to be valid in Australia, it generally must be in writing, signed by you (in principle you must be at least 18), and witnessed by two people who watch you sign at the same time and then sign it as well. Detailed requirements such as who can be a witness and how it must be signed differ by state, so check your state's rules. Missing even one requirement can make the will invalid or lead to disputes at the probate stage.
Public Trustee — official state government will services
Each state has a public body responsible for making, storing and administering wills. The names differ by state: NSW Trustee & Guardian in NSW, Queensland Public Trustee in QLD, State Trustees in VIC, and so on. Many offer free or low-cost help with making a will, but eligibility and fees (particularly the administration fees charged when you appoint the body as your executor) vary between organisations, so check the latest conditions on the official site.
- A written document + your signature + two witnesses signing while present at the same time — the three basic validity requirements
- Beneficiaries (or their spouses) should not act as witnesses — in some states the gift to them may become void
- Appoint an executor and a backup executor + tell your executor where the original is stored
Non-standard situations — such as needing someone to write the will for you, or vision or language difficulties — may attract additional requirements. In those cases it is safer to make the will through the Public Trustee or a lawyer.
What to prepare before you start
With a will, the preparation matters more than the drafting itself. If you sort out your list of assets and debts, your family structure and your executor candidates in advance, you can finish the consultation — whether with the Public Trustee or a lawyer — in a single session. For migrants in particular, listing Australian assets separately from overseas assets is important.
- Asset list: property, bank accounts, vehicles, investments + note superannuation separately (it is dealt with outside your will)
- People list: spouse/de facto partner, children, beneficiaries, executor, candidate guardians for minor children, with contact details
- Identity and relationship evidence: passport and visa; for a de facto relationship, evidence of cohabitation and shared finances (recognition criteria differ by state)
Making a will requires capacity — in principle you must be at least 18 — and where testamentary capacity could be challenged (old age, illness, etc.), preparing a doctor's opinion alongside the will helps prevent disputes.
Four things to know — intestacy and types of power of attorney
Here are four key concepts covering what happens if you do not prepare a will or power of attorney, and what types of power of attorney exist.
If you die without a will, your estate is distributed under your state's statutory order (broadly spouse and children first, then parents, siblings and so on). Depending on your family structure, the spouse may not receive everything, and if there are no eligible relatives, the estate may pass to the state government.
A general power of attorney delegates financial and legal decisions for a limited period or purpose. It is used for things like handling accounts and contracts while you are overseas, and it ceases to have effect if you lose decision-making capacity.
An enduring power of attorney remains valid even after you lose decision-making capacity and is the key tool for preparing for dementia or accidents. It can only be made while you still have capacity, so prepare it in advance; forms and witness requirements differ by state.
Medical and personal decisions, such as consent to treatment, are appointed under a scheme separate from a financial power of attorney. Names and schemes differ by state — e.g. enduring guardianship in NSW — so check your state's official site.
5 essential checklist items for migrants
A checklist of the points foreign residents in Australia most often miss when preparing wills and powers of attorney.
- Superannuation sits outside your will — lodge a binding death benefit nomination with your fund separately, and put the renewal cycle (3 years for many funds) in your calendar
- Overseas assets may be governed by the law of the country where they are located — consult a lawyer experienced in international estates and consider whether to make a parallel will in that country
- Life insurance and property held in joint tenancy may also pass outside your will — check the succession path for each asset individually
- If you move to another state, re-check whether your power of attorney and guardianship documents are recognised under your new state's rules
- Share the location of the original and a copy with your executor and family — your state Public Trustee's will storage service may be available
Warnings and common mistakes
Wills are repeatedly invalidated or administered contrary to intention because of unmet requirements or misunderstandings. Take particular care with these five.
- Over-relying on DIY will kits — ambiguous wording and unmet signing requirements risk disputes or invalidity at the administration stage. Use official channels such as the Public Trustee or a lawyer first
- Not updating your will after marriage or divorce — in most states marriage can revoke an existing will, and divorce affects provisions relating to your former spouse
- Using a beneficiary as a witness — in some states the gift to that beneficiary may become void
- Assuming "super is sorted because it's in my will" — without a binding death benefit nomination lodged, the trustee may decide the payment at its discretion
- Putting off an enduring power of attorney — once you lose capacity, you can no longer make one yourself, and a tribunal process may then become necessary
Useful official links
- Moneysmart — Wills and powers of attorney(opens in a new window)
Australian Government Moneysmart — a basic overview of wills and powers of attorney
- NSW Trustee & Guardian(opens in a new window)
NSW Trustee & Guardian — the public body responsible for making, storing and administering wills in NSW
- Queensland Public Trustee(opens in a new window)
Queensland Public Trustee — official will and enduring power of attorney services in QLD
- Public Trustee South Australia(opens in a new window)
State Trustees — VIC state-government-owned trustee organisation offering will and power of attorney services
- Legal Aid NSW(opens in a new window)
Legal Aid NSW — free legal information and advice (in other states, check that state's Legal Aid)
Frequently Asked Questions
What happens to my assets if I die without a will?▾
You die intestate, and the statutory order of inheritance in your state applies. Spouses and children generally come first, but you cannot assume the spouse receives everything — the distribution depends on your family structure (for example, where there are children from a previous relationship), and the rules differ between states. If there are no eligible relatives at all, the estate may pass to the state government.
Can a de facto partner inherit?▾
Yes. Succession laws in each Australian state generally recognise a de facto partner who meets certain requirements (such as length of cohabitation) on a similar footing to a spouse. However, the recognition criteria and how to prove the relationship differ by state, so check your state's official guidance. Proving the relationship can be a long and difficult process, so leaving a will in advance is far safer.
Does a will have to be drafted by a lawyer?▾
Legally, a will you write yourself can be valid if it meets the requirements (in writing, signed by you, two witnesses, etc.). However, commercial DIY kits carry risks of ambiguous wording and disputes at the administration stage. Your state's Public Trustee (names differ by state — e.g. NSW Trustee & Guardian) offers free or low-cost will-making services, so check official channels first. If your asset structure is complex or you have overseas assets, seeing a lawyer is recommended.
What is the difference between a general power of attorney and an enduring power of attorney?▾
A general power of attorney ceases to have effect if you lose decision-making capacity — it is used for temporary purposes such as handling finances while you are overseas. An enduring power of attorney remains valid even after you lose capacity, making it the key tool for preparing for dementia or accidents. Medical and personal decisions are appointed under a separate scheme (such as enduring guardianship — names differ by state), so check your state's official site.
Is superannuation passed on through my will?▾
No. As a rule, superannuation death benefits are paid outside your will, with the super fund's trustee deciding the payment. To make sure the money reaches the person you intend, you need to lodge a binding death benefit nomination with your fund separately, and many funds require it to be renewed periodically (typically every 3 years). Check the exact conditions with your fund.
Does an Australian will cover assets in my home country?▾
Assets such as overseas real estate may be governed by the law of the country where they are located, so an Australian will alone may not deal with them. Cross-border inheritance involves complex questions about which country's law applies, so always consult a lawyer experienced in international estates and, if necessary, explore with them whether to make a separate will in the country where the assets are located.
What happens to my existing will if I marry or divorce?▾
In most states, marriage can revoke an existing will (with exceptions, such as a will made in contemplation of marriage), and divorce affects the operation of provisions relating to your former spouse. The detailed rules differ by state, so review and update your will whenever there is a major change — marriage, divorce, starting a de facto relationship, or the birth of a child.