Wills and Estates: What You Need to Know
Written by Michelle Gold, Partner - Terracon Legal
Planning ahead can provide clarity and peace of mind for both you and your loved ones. From understanding how to make a valid will to knowing what happens if someone passes away without one, there are a number of important considerations when it comes to estate planning and administration.
Below, our team answers some of the most common questions we receive about wills and estates in the ACT and NSW.
Who can make a will, and what makes it valid?
Generally anyone 18+ with testamentary capacity; a valid will must be in writing, signed by the will‑maker (or by another at their direction), and witnessed by two people present at the same time (plus knowledge and approval of contents). Courts can authorise wills in special cases.
What happens if I die without a will (intestacy)?
Your estate is distributed under state intestacy laws; a family member may need to apply for Letters of Administration. This often causes extra delay, cost and complexity compared to having a will.
What is an executor and what do they do?
The executor administers the estate: funeral arrangements, identifying assets/liabilities, applying for probate, distributing assets, and finalising tax. They owe fiduciary duties to beneficiaries.
Does marriage or divorce affect my will?
Marriage and divorce can revoke parts or all of an earlier will—rules vary; get specific advice and update your will when your circumstances change.
Should I consider powers of attorney and enduring guardianship?
Yes—comprehensive estate planning considers incapacity arrangements (financial and personal/health decisions), not just post‑death distribution.
What is probate and when is it required?
Probate is a Supreme Court grant confirming the will’s validity and the executor’s authority. It is often needed to deal with major assets (banks, super, land titles). Some small estates can be handled without probate, subject to asset‑holder policies.
How soon must I apply for probate?
As an example, ACT/NSW rules require applying within six months of death or providing an explanation for delay. (Other states differ.)
What if there’s no executor (or they can’t act)?
A major beneficiary can seek Letters of Administration with the Will annexed; if an executor is under 18, a limited grant may be made to a guardian, or any other person the Supreme Court considers appropriate, until they turn 18.
Who can contest a will (family provision claims) and on what grounds?
Eligible persons (commonly spouses/partners, children, certain dependants) may claim inadequate provision; other challenges include lack of capacity, undue influence, fraud, or improper execution. Time limits are strict and vary by state.