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Wills and probate

Succession rules

What rules and restrictions (if any) govern the disposition of and succession to an individual’s property and assets in your jurisdiction?

  • Each state in Australia has its own legislation regarding succession and wills, and it is this legislation that determines the procedure for the executor or administrator of the deceased’s estate to pay the debts of the estate. The legislation will usually provide guidelines as to the order in which assets of the estate are to be used for the payment of debts. They may also provide rules for the remuneration of the executor.
  • The tax payable by the deceased is governed by the federal Australian taxation legislation. The executor or administrator will be required to have a final individual tax return prepared for the deceased for the period up to the date of his or her death.
  • While the estate is being administered, it may still be receiving income from its assets. As the deceased’s estate is considered a trust for taxation purposes, this income may be distributed to the beneficiaries of the estate. However, if the beneficiaries are not entitled to the estate’s income, any tax on the income will be payable by the trustee (usually the executor or administrator) of the deceased estate. The tax payable by the trustee will be assessed at the individual marginal tax rates without the Medicare levy. These tax rates will be applicable for a period of three tax years after the date of death (the first tax year commences on the date of death and ends on June 30 of that year). If the administration of the estate has not been completed before the end of the third tax year, the following tax rates will apply:

Taxable income to which beneficiaries are not entitled

Tax payable

0 - $416

Nil

$417 - $670

50% of the excess over $416

$671 - $37,000

Where the taxable income of the estate exceeds $670, the whole of the income will be taxed at 19% from $0

$37,001 - $80,000

$7,030 plus 32.5% of the excess over $37,000

$80,001 - $180,000

$21,005 plus 37% of the excess over $80,000

$180,001 and over

$58,005 plus 47% of the excess over $180,000

Intestacy

What rules and procedures govern intestacy?

Types of intestacy

In Australia, an intestacy may arise:

  • where the deceased dies without leaving a valid will; and
  • where the deceased leaves a valid will, but not all of the deceased’s estate is disposed of under the will.

Statutory rules

Where there is an intestacy, the statutory rules in each Australian jurisdiction govern distribution of the deceased’s estate.

The legislation creates several categories of potential recipient. 

The descending priority for recipients is as follows:

  • surviving spouse and issue of the deceased (‘issue’ is defined as the nearest lineal descent of the deceased). In this category, the extent of the estate passing to the surviving spouse depends on whether or not there is also surviving issue of the deceased;
  • immediate family;
  • next of kin; and
  • the Crown.

Additionally, the legislation also provides differing rules for distribution depending on the various classes of asset making up the estate. These categories include:

  • personal or household chattels of the deceased;
  • the matrimonial home of the deceased; and
  • the remainder of the estate.

The relevant provisions in the statutory rules for each Australian jurisdiction are:

Australian jurisdiction

Legislation

Queensland

Part 3 and Schedule 2 of the Succession Act 1981

New South Wales

Chapter 4 of the Succession Act 2006

Victoria

Part 1A of the Administration and Probate Act 1958

South Australia

Part 3A of the Administration and Probate Act 1919

Australian Capital Territory

Part 3A of the Administration and Probate Act 1929

Northern Territory

Part 3, Divisions 4, 4A and 5 of the Administration and Probate Act 1969

Western Australia

Part 2 of the Administration Act 1903

Tasmania

Intestacy Act 2010

Governing law

What rules and restrictions (if any) apply to the governing law of a will?

The rules and restrictions that apply to the governing law of a will are subject to legislation in each state and territory of Australia. The relevant primary legislation that contain the statutory rules for each Australian jurisdiction are:

Australian jurisdiction

Legislation

Queensland

Succession Act 1981

New South Wales

Succession Act 2006

Victoria

Wills Act 1997

South Australia

Wills Act 1936

Australian Capital Territory

Wills Act 1968

Northern Territory

Wills Act 2000

Western Australia

Wills Act 1970

Tasmania

Wills Act 2008

Case law sometimes also clarifies the rules and restrictions set out in the relevant legislation.

Formalities

What are the formal and procedural requirements to make a will? Are wills and other estate documents publicly available?

Any document that meets the formal requirements of a will is admissible to probate, providing that the testator possessed the requisite capacity and intention to make a will.

Each Australian jurisdiction contains statutory provisions that set out the specific formal requirements of wills. While there are some minor points of difference between the acts, the fundamental requirements are that:

  • the will be in writing;
  • the will be signed by the testator (or someone else in the presence of and at the direction of the testator);
  • the signature be made with the intention of executing the will;
  • the will be signed in the presence of two or more witnesses who are present at the same time; and
  • each witness attest and sign the will in the presence of the testator.

Australian jurisdiction

Legislation

Queensland

Section 10 of the Succession Act 1981

New South Wales

Section 6 of the Succession Act  2006

Victoria

Section 7 of Wills Act 1997

South Australia

Section 8 of the Wills Act 1936

Australian Capital Territory

Sections 9-10 of the Wills Act 1968

Northern Territory

Section 8 of the Wills Act 2000

Western Australia

Section 8 of the Wills Act 1970

Tasmania

Section 8 of the Wills Act 2008

Judicial dispensing power

If a will does not comply with the formal requirements, it may still be admitted to probate as a will if the court is sufficiently satisfied that:

  • the deceased intended that document to constitute his or her will; and
  • the document expresses the deceased’s testamentary intention.

Australian jurisdiction

Legislation

Queensland

Section 18 of the Succession Act 1981

New South Wales

Section 8 of the Succession Act 1997

Victoria

Section 9 of the Wills Act 1997

South Australia

Section 12 of the Wills Act 1936

Australian Capital Territory

Section 11A of the Wills Act 1968

Northern Territory

Section 10 of the Wills Act 2000

Western Australia

Sections 9 and 32 of the Wills Act 1970

Tasmania

Section 10 of the Wills Act 2008

Once a will is filed with a court, it becomes a public document. Upon the payment of a specific fee, a person can view a will on the court’s file. To determine whether probate has been applied for, a person can also search the civil files of the relevant court.

Validity and amendment

How can the validity of a will be challenged? Can the will be amended after the decedent’s death?

Where an application for grant of probate is not contested, the registrar of court may grant probate without the need to prove the will in court formally if an application is supported by affidavits.

By contrast, where the validity of the will is disputed, an application for a grant in solemn form can be made and the proceedings are heard by the court. Once the matter is heard, a grant in solemn is granted that effectively has the status of a court judgment and is binding on the parties.

Statutory rectification powers

The courts have limited power to rectify or amend any defect in a will after the testator’s death. 

The Supreme Court may amend a will only if it is satisfied that the will does not carry out the testator’s intentions. The court’s power to amend is expressed generally in the South Australian and Australian Capital Territory legislation, while the remaining Australian provisions have a much more limited power, requiring that:

  • a clerical error were made; or
  • the will give no effect to the testator’s instructions.

Australian Jurisdiction

Legislation

Queensland

Section 33 of the Succession Act 1981

New South Wales

Section 27 of the Succession Act 2006

Victoria

Section 31 of the Wills Act 1997

South Australia

Section 25AA of the Wills Act 1936

Australian Capital Territory

Section 12A of the Wills Act 1968

Northern Territory

Section 27 of the Wills Act 2000

Western Australia

Section 50 of the Wills Act 1970

Tasmania

Section 42 of the Wills Act 2008

How is the validity of a will established in your jurisdiction?

Broadly, a valid will exists in circumstances where:

  • the testator possessed the required testamentary capacity;
  • the testator knew and approved of the contents of the will;
  • the testator intended to execute a will; and
  • the formal requirements are met.

Where a will disposes of property, it is admissible to a grant of probate by the court. The court’s grant of probate is conclusive evidence of the validity of a will:

Australian jurisdiction

Legislation

Queensland

Section 64 of the Evidence Act 1977

New South Wales

Section 92 of the Evidence Act 1995

Victoria

Section 92 of the Evidence Act 2008

South Australia

Section 119 of the Administration and Probate Act 1919

Australian Capital Territory

Section 9C of the Administration and Probate Act 1929

Western Australia

Section 140 of the Administration Act 1903

Tasmania

Section 92 of the Evidence Act 2008

To what extent are foreign wills recognised? Do any special rules and procedures apply to establishing their validity in your jurisdiction?

A foreign will may be recognised as an ‘international will’ under the Convention Providing a Uniform Law on the Form of an International Will 1973. International wills are recognised as valid in all countries that are party to the convention. The convention entered into force in Australia on March 10 2015.

Additionally, each Australian jurisdiction contains statutory provisions that are concerned with recognising the formal validity of wills. 

Australian jurisdiction

Legislation

Queensland

Sections 33T to 33YE of the Succession Act 1981

New South Wales

Sections 47 to 50E of the Succession Act 2006

Victoria

Sections 16A to 19E of the Wills Act 1997

South Australia

Section 25A to 25J of the Wills Act 1936

Australian Capital Territory

Part 2A and Part 3B of the Wills Act 1968

Western Australia

Part XA of the Wills Act 1970

Tasmania

Sections 59A to 62E of the Wills Act 2008

Estate administration

What rules and procedures govern:

(a) The appointment of estate administrators?

An administrator (the legal personal representative) is appointed by the court in situations where:

  • the deceased does not have a valid will;
  • the deceased has left a will, but has not appointed an executor; or
  • the deceased has made a will and has appointed an executor, but the executor is unwilling or unable (due to physical or mental disability or death) to carry out the duties of an executor.

The courts have a broad power in appointing an administrator who is deemed to be adequate to assume the responsibilities of the role.

Australian jurisdiction

Legislation

Queensland

Section 6 of the Succession Act 1981

New South Wales

Section 74 of the Probate and Administration Act 1898

Victoria

Section 17 of the Supreme Court Act 1986

South Australia

Section 5 of the Administration and Probate Act 1919

Australian Capital Territory

Sections 12 of the Administration and Probate Act 1929

Northern Territory

Sections 14 and 33 of the Administration and Probate Act 1969

Western Australia

Section 6 and 36 of the Administration Act 1903

Tasmania

Section 13 of the Administration and Probate Act 1935

In situations where the deceased dies intestate, the court will likely grant administration to the person with the greatest interest in the estate. There is an order of priority, which means that should these circumstances arise, the courts will generally look to the next of kin or an individual who shared an intimate relationship with the deceased to be prioritised as administrator. 

Australian jurisdiction

Legislation

Queensland

Rule 610 of the Uniform Civil Procedure Rules 1999

New South Wales

Section 63 of the Probate and Administration Act 1898

South Australia

Rule 31 of the Supreme Court Probate Rules 2004

Australian Capital Territory

Section 12 of the Administration and Probate Act 1929

Northern Territory

Section 22 of the Administration and Probate Act 1969

Western Australia

Sections 24 and 25 of the Administration Act 1903

Tasmania

Rule 19 of the Probate Rules 2017

(b) Consolidation and administration of the estate?

The chronological procedure for the personal representative is as follows:

  • Ensure that the relevant person is in fact deceased before taking any steps in relation to his or her estate;
  • Ensure that all assets of the deceased that require continuous and immediate supervision are attended to;
  • Attend to the burial of the deceased;
  • Apply for probate (“proving the will”);
  • Collect the deceased’s assets (this may include transferring title to real property, physically moving assets or retrieving monies lent on personal securities);
  • Identify and meet the liabilities of the deceased; and
  • Distribute the assets of the deceased within a “reasonable time”. The following jurisdictions impose a statutory timeframe:

Australian jurisdiction

Legislation

Victoria

Section 49 of the Administration and Probate Act 1958

South Australia

Section 56 of the Administration and Probate Act 1919

Western Australia

Section 44 of the Administration Act 1903

Tasmania

Section 43 of the Administration and Probate Act 1935

(c) Distribution of the estate to heirs?

The primary function of a personal representative is to collect the estate of the deceased (real and personal) and to administer the estate according to law. 

In distributing the estate under a will, the personal representative must be careful to ensure that the estate is distributed in accordance with the proper interpretation of the will. 

Additionally, there are detailed statutory rules for each Australian jurisdiction that govern the administration of assets from the deceased’s estate, which are as follows:

Australian jurisdiction

Legislation

Queensland

Part 5 of the Succession Act 1981

New South Wales

Part 2, Division 2 of the Probate and Administration Act 1898

Victoria

Part 1, Division 2 of the Administration and Probate Act 1958

South Australia

Part 3 of the Administration and Probate Act 1919

Australian Capital Territory

Section 41C and Schedule 4 of the Administration and Probate Act 1929

Northern Territory

Part III, Division 6 of the Administration and Probate Act 1969

Western Australia

Part 2 of the Administration Act 1903

Tasmania

Part IV of the Administration and Probate Act 1935

(d) Settlement of the decedent’s debts and payment of any taxes and fees?

Generally, the liability of payment of debt of the deceased will depend upon whether the estate of the deceased is solvent or insolvent. Each state and territory has different requirements when dealing with debt and appropriate advice should be sought in respect of the requirements in each state and territory.

Planning considerations

Are there any special considerations specific to your jurisdiction that individuals should bear in mind during succession planning?

Family provision applications – reason to move money out of the estate

All Australian succession legislation provides that where the testator does not make adequate provision for the proper maintenance and support of certain dependants, then the court may (at its discretion) make an order for further provision out of the estate. The family provision legislation applies to testate, as well as intestate estates.

The applicant must fall within one of the statutory prescribed categories of applicant. The amount of the order depends on the circumstances of each individual case.

Australian jurisdiction

Legislation

Queensland

Part 4 of the Succession Act 1981

New South Wales

Chapter 3 of the Succession Act 2006

Victoria

Part 4 of the Administration and Probate Act 1958

South Australia

Inheritance (Family Provision) Act 1972

Australian Capital Territory

Family Provision Act 1969

Northern Territory

Family Provision Act 1970

Western Australia

Family Provision Act 1972

Tasmania

Testator’s Family Maintenance Act 1912

When estate planning, moving certain property out of a testator’s estate may prove useful if the testator foresees that it is possible to bring a family provision application. The establishment of inter vivos trusts are useful.

To ensure that monies are given to a particular person (eg, a spouse), opening up a joint bank account may take that property out of the estate, and help the intended person gaining access to it.

Co-ownership of property

In Australia, the rule of survivorship provides that where property is held between two or more people as joint tenants, the interest of the deceased person passes directly to any surviving joint tenant or joint tenants. This is the case regardless of what is stated in the individual’s will.  

By contrast, where property is held as tenants in common, on the death of one of the owners, that person’s share passes to his or her estate and is distributed according to the will. 

Life insurance and superannuation

Additionally, the implications of life insurance and relevant superannuation schemes should be considered when estate planning.

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