Understanding inheritance laws in Australia
Inheritance rules are set by state and territory laws. They decide how an estate is collected, debts paid and the remainder distributed. The outcome depends on whether the person left a valid will, what assets are in the estate, any claims by eligible family members and how superannuation and jointly owned property are handled.
This page provides practical, step‑by‑step information so you can evaluate your options, compare likely pathways and prepare documents that usually matter first. If you are unsure which state’s rules apply, start with the place where the deceased was domiciled (usually where they lived permanently).
Important: This is general information only. Time limits and eligibility criteria vary by state and the facts. Get advice early where a deadline or dispute may exist.
Who inherits: with a will vs intestacy
If there is a valid will
- The executor applies for probate (where required) and distributes in line with the will.
- Specific gifts are made first, then the residue is shared as directed.
- Superannuation may be paid directly to dependants or to the estate, depending on nominations and fund rules.
- Jointly owned property held as joint tenants usually passes to the survivor outside the estate.
If there is no will (intestacy)
Statutory rules decide the shares. Common patterns include:
- Spouse/de facto only: usually inherits the entire estate.
- Spouse/de facto and children: spouse generally receives most or a statutory amount plus a share; children share the remainder (varies by state and where there are children from previous relationships).
- No spouse or children: parents, then siblings, then more distant relatives may inherit. If none, the estate can pass to the state.
De facto partners are generally recognised if relationship criteria are met. Adopted children usually inherit as children; stepchildren rules differ by state.
What to gather first
Collecting the right records early speeds up advice, probate and any dispute resolution.
- Original will and any codicils (or confirmation there is no will)
- Death certificate (or interim registration details)
- Asset list: property titles, bank/super statements, shares, vehicles, business interests
- Liabilities: mortgages, loans, credit cards, tax debts
- Superannuation fund details and any death benefit nominations
- Ownership details for real property: joint tenants vs tenants in common
- Family information: spouse/de facto evidence, children (including from other relationships)
- Funeral invoices and urgent estate expenses
Contesting a will or making a family provision claim
Most challenges are family provision claims, where eligible people argue the will (or intestacy) did not make adequate provision for their proper maintenance and support. Other challenges include capacity, undue influence or improper execution of the will.
Eligibility and grounds
- Eligible applicants often include spouses/de factos, children (including some step or adopted children), and sometimes dependants or former spouses.
- Courts weigh factors such as financial need, the size of the estate, relationship history, competing claims and any contributions made by the applicant.
- Evidence matters: finances, health, care provided to the deceased, and communications about intentions.
Time limits (check your state)
- NSW: commonly 12 months from date of death.
- VIC, SA, WA: commonly 6 months from the grant of probate/administration.
- QLD: generally notice within 6 months of death; file within 9 months of death (extensions are discretionary).
- TAS: often 3 months from the grant.
- ACT, NT: generally 6–12 months from the grant (varies by legislation).
Most family provision matters settle through negotiation or mediation. File preparation, affidavit evidence and valuation of assets can be significant cost drivers.
Superannuation, life insurance and property ownership
Superannuation and death benefits
- Super is held by the fund trustee and is not automatically part of the estate.
- A valid binding death benefit nomination can direct payment to dependants or to the legal personal representative (the estate).
- Where a nomination has lapsed or is non‑binding, the trustee decides in line with fund rules and legislation.
- Life insurance inside super is usually paid as part of the super death benefit.
Real property and bank accounts
- Joint tenants: passes to the survivor by survivorship; generally outside the estate.
- Tenants in common: deceased’s share is an estate asset.
- Banks may release modest funds for funeral costs before probate; larger balances often require probate or administration.
- Title office procedures differ by state; certified copies and forms are usually required.
Taxes and deceased estates
- No inheritance tax: Australia has no inheritance or estate duty.
- Capital gains tax (CGT): Generally deferred until a beneficiary or the estate disposes of the asset. The main residence exemption and cost‑base reset rules may apply.
- Income tax: Estate income (e.g., rent, interest, dividends) is usually taxed in the estate before distribution; beneficiaries may also have tax obligations.
- Superannuation tax: Tax treatment of super death benefits depends on whether paid to tax dependants vs non‑dependants and whether components are taxable/tax‑free.
- Stamp duty/transfer duty: Deceased estate concessions may apply to transfers to beneficiaries (state rules vary).
- Centrelink: Bereavement payments and means‑testing impacts may arise for partners and beneficiaries.
Typical costs and timeframes
| Matter type | What to expect |
|---|---|
| Grant of probate (straightforward) | Often fixed-fee plus court filing fees. Timelines usually 4–10 weeks after filing, depending on state processing times. |
| Letters of administration (no will) | More evidence and notices are required; cost and time slightly higher than probate. |
| Transmission/assent of property | Land registry fees apply; timing depends on certificate of title, lender discharge and state forms. |
| Family provision (contested) | Costs vary widely. Many resolve at mediation. Ask for a staged strategy, likely ranges and settlement options. |
Always request a written scope, fee basis (fixed, staged, or hourly), expected disbursements and when court filing fees are payable.
State and territory differences (at a glance)
Core ideas are similar nationwide, but there are key differences in time limits, intestacy shares, court forms and notices. Confirm local rules in the state where the deceased was domiciled or where assets are located.
- NSW: Family provision usually within 12 months of death; probate via Supreme Court of NSW.
- VIC: Many time limits run 6 months from grant; applications via Supreme Court of Victoria.
- QLD: Notice to the executor within 6 months of death and file by 9 months is common guidance.
- WA: Often 6 months from grant for family provision; separate forms for reseals and small estates.
- SA: Typically 6 months from grant; rules for small estates may assist.
- TAS: Some deadlines as short as 3 months from grant; check practice directions.
- ACT/NT: Deadlines commonly 6–12 months from grant; confirm in local legislation.
How inheritance matters usually progress
| Stage | What usually happens |
|---|---|
| Initial assessment | Confirm will status, domicile, assets vs liabilities, and urgent risk (deadlines, asset protection, funeral needs). |
| Document collection | Obtain death certificate, will, asset and ownership records, super details, valuations if needed. |
| Probate/administration | File in the relevant Supreme Court; publish notices where required; respond to requisitions. |
| Distribution | Pay debts and taxes, then distribute according to the will or intestacy. Obtain receipts and releases. |
| Disputes (if any) | Negotiation and mediation are common. If unresolved, the court hears the claim. |
Inheritance laws FAQ
Who inherits if there is no will in Australia?
Intestacy rules apply. The spouse or de facto usually receives most or all. If there are children, the spouse commonly takes a statutory legacy and/or a share with children sharing the remainder. If no spouse or children, parents, siblings and then more distant relatives may inherit. If none, the estate can pass to the state.
Is there inheritance tax in Australia?
No. There is no inheritance tax. Capital gains tax can arise on later sale of inherited assets, and income earned by the estate or beneficiaries remains taxable under normal rules.
How long do I have to contest a will?
Deadlines vary by state and by claim type. Family provision limits are commonly 6–12 months from death or from the grant of probate/administration. QLD typically requires notice within 6 months of death and filing within 9 months. Act quickly to protect your position.
Does superannuation automatically form part of the estate?
Not always. The trustee of the super fund decides in line with the deed and any valid binding nomination. Super may be paid directly to dependants or to the estate.
What if the original will is missing?
The court may accept a copy with supporting evidence of due execution and the circumstances of loss, but the process is more complex. Get advice promptly.
Can I act as executor without a lawyer?
Yes, but many executors engage a lawyer for probate, court requisitions, tax, property transfers and dispute management. Fixed fees are often available for straightforward matters.
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