Australia Law and Practice
A Bare Summary, as at January 1 2026
This document is provided for general guidance only and does not constitute legal, tax or fiduciary advice. Estate planning is bespoke to each individual, and professional advice tailored to your specific circumstances and relevant jurisdictions should always be obtained. Laws and regulations may change from time to time, and reliance should not be placed on this document without appropriate professional confirmation.
- In Case of Mental and/or Physical Incapacity
In Australia, it is advisable to make an Enduring Power of Attorney (EPOA) and an Enduring Guardianship. This allows you to appoint a trusted person (your “attorney”) to make decisions on your behalf if you lose capacity.
Financial/Legal matters – covered by the EPOA.
Health and personal decisions – covered by an Enduring Guardianship document (in NSW and some states) or an Advance Care Directive (known by different names across states).
Each state and territory has its own legislation, forms, and requirements; however, these documents must generally be signed, witnessed, and sometimes registered (for example, land-related powers in NSW are registered with the Land Registry Services).
Separately, you may also make an Advance Care Directive (sometimes called a “Living Will”), setting out your wishes for future medical treatment, including end-of-life care. This may include refusing or consenting to specific treatments.
- Death/Estate Taxes
Australia does not have an inheritance tax or estate duty. Instead, there are other relevant tax consequences: Capital Gains Tax (CGT) – when assets are transferred from the deceased estate to beneficiaries, CGT may apply, although in many cases the transfer itself is disregarded until a later disposal. Special rules apply to the main residence, which may be exempt from taxation if sold within two years of the deceased's death. Where non-Australian assets pass to an overseas beneficiary, this generally triggers an immediate CGT charge.
Superannuation Death Benefits – these may be subject to tax depending on whether they are paid to a dependent or non-dependent. For example, payments to adult children who are not dependants may attract tax on the taxable component. As superannuation is not automatically part of your estate, you should ensure that a Binding Death Benefit Nomination is in place directing your super to your dependants or your legal personal representatives.
Gifts to charities – generally exempt, as charities are tax-exempt entities. Testamentary trusts are a valuable estate planning tool, offering both tax and asset protection benefits.
- The Probate Procedure
The Funeral Director usually applies for the Death Certificate, but an authorised person can obtain it. For whom is an authorised person, you should refer to your state law, but in all cases, it will include the next of kin, the Funeral Director, and the Executor.
Probate is not needed in certain situations. For example, in NSW, probate may not be necessary if:
– Assets are held jointly (e.g. a house owned as joint tenants, a joint bank account), these pass automatically to the surviving co-owner.
– The estate is small, and institutions are willing to release funds without probate.
– Banks and other financial institutions set their own thresholds (e.g. some will release up to $15,000 – $50,000 without probate).
– The deceased’s only assets were personal belongings (furniture, jewellery, etc.).
To obtain Probate (where there is a valid Will), the Executor must apply to the Supreme Court of the relevant state or territory. Where there is no Will, the estate is administered under Letters of Administration, with entitlement determined by the relevant state or territory’s intestacy laws.
1 January 2026
