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
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
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
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
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