FAQ
Your executor is the person you appoint in your will to carry out your instructions after you die. Under the Wills Act 1997 (Vic), executors are responsible for obtaining a grant of probate from the Supreme Court of Victoria, collecting and managing assets, paying debts, and distributing gifts to beneficiaries. You may appoint one to four executors. Choose someone who is organised, trustworthy with money, and willing to take on the responsibility. It is prudent to also name a substitute executor in case your first choice is unable or unwilling to act.
If you die without a valid will in Victoria, you die intestate and your estate is distributed under the intestacy provisions of the Administration and Probate Act 1958 (Vic). The law determines who inherits, which may not reflect your wishes. A spouse or domestic partner is typically the primary beneficiary, but the outcome depends entirely on who survives you and the value of the estate. Without a will there is no executor, so the Supreme Court of Victoria must grant letters of administration before the estate can be administered. Making a will is the only reliable way to control how your assets are distributed.
How you own property directly affects your estate planning in Victoria. If you own property as joint tenants, the surviving owner automatically inherits the deceased owner’s share by right of survivorship — your will has no effect on that share. If you own as tenants in common, your share forms part of your estate and passes according to your will. Your ownership type is shown on your certificate of title, registered with Land Use Victoria. This distinction is critical when planning your estate, particularly for blended families or co-ownership arrangements.
No. Superannuation does not form part of your estate and is not governed by your will. It is held in trust by your super fund, and the trustee decides who receives the death benefit unless you have a valid Binding Death Benefit Nomination (BDBN) in place. A BDBN directs your fund to pay the benefit to your nominated beneficiaries, who must be a spouse, child, dependant, or your estate. The Australian Taxation Office provides guidance on nominations. Review your BDBN regularly as it may lapse if not renewed.
If you have children under 18, you can appoint a testamentary guardian in your will to care for them if both parents pass away. The guardian makes decisions about where the children live, their schooling, and their general welfare. Appointing a guardian ensures your children are cared for by someone you trust. Without a testamentary guardian appointment, the court will determine guardianship arrangements under the Family Law Act 1975 (Cth), which may not align with your wishes.
Yes. You can revoke or update your will at any time while you have legal capacity. The most common method is making a new will, which expressly revokes all previous wills and codicils. You may also add a codicil to make minor amendments. Under the Wills Act 1997 (Vic), marriage automatically revokes a prior will in Victoria unless the will was made in contemplation of that marriage. Divorce does not revoke a will but revokes any gifts or appointments made to a former spouse. Review your will after major life events including marriage, divorce, birth of children, or significant changes to your assets.
A testamentary trust is a discretionary trust created by your will that comes into effect after your death. It is governed by the Trustee Act 1958 (Vic) and can provide significant tax advantages, particularly where beneficiaries include minors — income distributed to minors from a testamentary trust is taxed at adult rates rather than the punitive minor tax rates. Testamentary trusts also protect assets from beneficiaries’ creditors and relationship breakdown. They are particularly beneficial for larger estates or where beneficiaries require ongoing financial management.
Generally you must be 18 or over to make a valid will in Victoria. Under section 5 of the Wills Act 1997 (Vic), a person under 18 is defined as a minor and cannot ordinarily make a will. However, a minor may do so if they are married, or if they obtain a court order authorising the making of a will from the Supreme Court of Victoria.