Estate Planning in Australia: A Simple 4-Part Guide

Estate planning in Australia sits somewhere between “doing your tax” and “cleaning the gutters” on most people’s fun-o-meter. It means thinking about getting sick, getting older and, well, not being here. So it’s no surprise plenty of us pop it on the “later” pile.

Estate planning isn’t really about you though. It’s about making life easier for the people you love at the exact moment life is hardest for them. And you don’t need a huge fortune to have a plan. If you have super, a bank account, a car, a partner, kids, you have an estate worth planning.

In this guide, we’ll walk through the four key pieces of an Australian estate plan: your will, your enduring power of attorney, your super beneficiary nominations and testamentary trusts. For each one, we’ll cover what it does and what happens when it’s missing or out of date.

What is Estate Planning in Australia?

Estate planning is deciding who gets your assets when you die, and who makes decisions for you if you can’t. It’s a set of legal documents that work together, backed by a financial strategy that makes sure the numbers actually add up.

Think of it like a relay race. You’ve spent years running your leg: building super, paying off the house, growing a business. Estate planning is the baton change. Get it right and the baton passes smoothly. Fumble it and the baton rolls off the track while everyone scrambles in the gravel.

Your will doesn’t control everything you own. Some of your biggest assets travel on a completely different road.

That’s why good estate planning in Australia looks at your whole financial picture, not just one document in a drawer.

1. Your Will: The Instruction Manual

A will is the cornerstone of any estate plan. It names your executor (the person who wraps up your affairs), says who gets what, and nominates guardians for young children. It can also set up testamentary trusts, which we’ll get to shortly.

What happens if you don’t have a will?

If you die without a valid will, you die “intestate”. In Queensland, your estate is then divided using a fixed formula in the Succession Act 1981 (Qld). The law doesn’t know you, your family or your wishes. It just does the maths.

Under the Queensland intestacy rules:

• If you leave a spouse (including a de facto partner) and no children, your spouse generally receives everything.
• If you leave a spouse and children, your spouse receives the first $150,000, your household items, and a share of what’s left. With one child they split the rest 50/50. With two or more children, your spouse gets one-third and the kids share the other two-thirds.
• If there’s no spouse or children, the estate moves down the family tree: parents, then siblings, then grandparents, then aunts, uncles and cousins.
• If there’s no one eligible at all, your estate goes to the State.

There’s also no executor, so a family member has to apply to the Supreme Court for “letters of administration” before anything can happen. That means more time, more cost and more paperwork during an already rotten time.

A real-world example: Mark remarried in his fifties. He has two adult children from his first marriage and a stepdaughter, Chloe, he’s raised since she was four. Mark always meant to “get around to” a will. Under Queensland intestacy rules, stepchildren aren’t recognised as heirs. His wife and his biological kids share the estate, and Chloe gets nothing unless she takes the family to court. Nobody wanted that outcome, least of all Mark.

What happens if your will is outdated?

An old will can be almost as messy as no will. Using a will from 2009 is like navigating Brisbane with a 2009 street directory: the bones are there, but the roads have changed. Watch out for these traps in Queensland:

• Getting married generally revokes your existing will (unless it was made in contemplation of that marriage).
• Divorce, or the end of a de facto relationship, generally revokes gifts to your former partner. But separation alone does not. If you’ve separated but haven’t finalised a divorce, your ex could still inherit under an old will.
• Your executor may no longer be suitable. They might have passed away, moved overseas, or you’ve simply stopped speaking.
• Your assets have changed. Leaving “my house at 12 Smith Street” to someone is awkward if you sold it in 2017.
• New family members aren’t provided for. Grandkids, new partners and blended families all need thinking through.

If you’re going through a separation, our Recently Single page is a good place to start.

2. Enduring Power of Attorney

Your will only kicks in when you die. But what if you’re still here and just can’t make decisions? In the event of a stroke, a serious car accident, or dementia. That’s where an enduring power of attorney (EPA) comes in.

In Queensland, an EPA lets you appoint one or more people you trust (your “attorneys”) to make decisions for you:

• Financial matters: paying bills, managing investments, selling property, dealing with the bank.
• Personal and health matters: where you live, day-to-day care and health care decisions.

It’s called “enduring” because it keeps working after you lose capacity. A general power of attorney, by contrast, stops the moment you lose capacity, which is exactly when you’d need it most.

You can also make an Advance Health Directive. That’s where you record your own instructions about future medical treatment, so your family isn’t left guessing in a hospital corridor.

Think of your attorney as your designated driver. You choose them while you’re clear-headed, not after the car is already in the ditch. You can find the official forms and guidance on the Queensland Government’s powers of attorney page.

What happens if you don’t have an Enduring Power of Attorney?

Many people assume their spouse or adult kids can step in. Unfortunately, it doesn’t work that way. Your partner generally can’t access accounts in your sole name, sell your investment property, or deal with your super on your behalf.

Instead, your family may need to apply to the Queensland Civil and Administrative Tribunal (QCAT) to have a guardian or administrator appointed. That can mean delays, costs and, in some cases, the Public Trustee managing your finances rather than someone you’d have chosen. It’s a lot of red tape at a time your family would rather be focusing on you.

You can’t make an EPA once you’ve lost capacity. This is one document where “later” can easily become “too late”.

What happens if your EPA is outdated?

• Your attorney is no longer the right person. An ex-partner, an ageing parent or a sibling who’s moved to Perth may not be ideal anymore.
• There’s no backup. If your only attorney can’t act, you’re back to the QCAT route.
• It doesn’t talk to your wider affairs. For example, if you have a self-managed super fund, your EPA can be crucial for someone to step into your trustee role and keep the fund compliant. If nobody’s thought about how those two fit together, problems follow.

Facing a health scare right now? Our Unexpected Health Event page walks through the financial side of getting organised.

3. Super Beneficiary Nominations

For many Australians, super is their biggest asset after the family home. Add in the life insurance that often sits inside super, and the total can be eye-watering. Yet super doesn’t automatically form part of your estate, so your will can’t direct where it goes.

Picture your estate as a house. Your will holds the keys to the front door. Your super is a granny flat out the back with its own lock, and your beneficiary nomination is the only key that fits.

The main types of nomination are:

• Binding (lapsing): your fund must pay the people you name, but the nomination typically expires after three years.
• Binding (non-lapsing): your fund must follow it and it doesn’t expire, if your fund offers this option.
• Non-binding: a statement of your wishes. The fund considers it but has the final say.
• Reversionary: if you’re receiving a super pension, it keeps paying to a nominated person (usually your spouse).

You can generally only nominate your “dependants” (such as your spouse, children, or someone financially dependent on you) or your estate. Moneysmart has a handy explainer on how this works.

What happens if you don’t have a nomination?

Without a valid binding nomination, your super fund trustee usually decides who receives your benefit, within the rules. That may not match your wishes, and it can take months. In blended families, it can also spark disputes between a new partner and children from an earlier relationship.

You wouldn’t be alone in missing this step. ABC News reported in August 2026 that an estimated 15.5 million Australians may not have made a binding nomination.

What happens if your nomination is outdated?

• It’s quietly lapsed. Many binding nominations expire after three years and are then usually treated as non-binding. You might think it’s locked in when it’s really just a suggestion.
• Your nominee is no longer eligible. Nominate a partner, then separate, and the nomination may fail altogether.
• It clashes with your will. Your will might split everything equally between three kids, while your nomination sends your super (the biggest pot) to just one of them.
• It’s not tax-smart. Super paid to adult children who aren’t financially dependent on you can be taxed at up to 17% on the taxable component, and more where insurance is involved. Sometimes routing super through your estate (and into a testamentary trust) or restructuring your super before death can make a real difference.

This is where legal and financial advice really need to hold hands. Our superannuation and retirement advice and insurance advice teams look at nominations as part of the bigger picture.

4. Testamentary Trusts

A testamentary trust is a trust written into your will. It only comes to life when you die. Instead of your inheritance landing directly in a beneficiary’s personal name, it’s held in a trust and managed by a trustee (often the beneficiary themselves).

A testamentary trust is more like a well-built shed with a lock. They can still use everything inside, but it’s much harder for anyone else to wander off with it.

Why families use testamentary trusts

• Asset protection. Assets held in a well-drafted trust can be better protected if a beneficiary goes through a relationship breakdown, bankruptcy or a business failure. (Better protected, not bulletproof. Every situation is different.)
• Protecting vulnerable beneficiaries. Great for young children, a family member with a disability, or someone who’s, let’s say, a little too generous with a credit card.
• Tax flexibility. Normally, children under 18 pay penalty tax rates on investment income above a small amount. But income a testamentary trust earns from assets of the deceased estate is generally taxed at adult rates, including the tax-free threshold. The ATO explains this in its guide to how tax rates apply for minors. For a family with young kids, the savings can be significant.
• Flexibility each year. The trustee can decide who receives income and capital each year, depending on everyone’s circumstances at the time.

What happens if you don’t have one?

Without a testamentary trust, everything passes to beneficiaries in their own names. It becomes part of their personal assets, and can be exposed if their relationship ends or their business goes pear-shaped. Young children’s inheritances are generally held until they turn 18, and then they receive the lot. The tax benefits for minors are lost too.

To be fair, testamentary trusts aren’t for everyone. For a modest, simple estate, they may be more structure than you need. That’s a conversation worth having with someone who can see both the legal and the financial sides.

What happens if yours is outdated?

• The rules have changed. Since 1 July 2019, the concessional tax treatment for minors only applies to income from assets that actually came from the deceased estate. Older strategies that relied on topping up the trust from elsewhere may not work as planned.
• Your trustees or beneficiaries have changed. The kids who were toddlers when you signed may now be adults who could act as trustees themselves.
• It doesn’t connect to your other structures. If you have a family trust, company or SMSF, your testamentary trust should be designed around them. Our article on trust vs company structures and our structuring and asset protection services go deeper on this.

Estate Planning Checklist

An estate plan isn’t a “set and forget” job. It needs a regular check-up, plus an extra look over whenever something big changes. As a rule of thumb, review your plan every three to five years, or sooner if any of these apply:

• You’ve married, re-partnered or started a de facto relationship.
• You’ve separated or divorced.
• You’ve welcomed a child or grandchild into the family.
• You’ve bought or sold property, or started, bought or sold a business.
• You’ve received an inheritance, windfall or redundancy payout.
• You’ve set up an SMSF, family trust or company.
• Your executor, attorney or a beneficiary has died, moved away or fallen out with you.
• You or your partner have had a significant health diagnosis.
• You’re approaching or entering retirement.
• Your super nomination is coming up to its three-year anniversary.

Why Your Lawyer And Your Financial Adviser Should Be On Speaking Terms

Here’s something we see more often than you’d think. Someone has a beautifully drafted will leaving everything equally to their three children. Job done, right?

Except the family home is owned as joint tenants, so it passes straight to their spouse. Their $900,000 in super and insurance goes via a binding nomination to just one child. The will ends up controlling a bank account and a ute. Everyone’s plans were “correct” on their own. They just never met each other.

That’s the gap an integrated approach closes. At HPartners, our legal, financial planning and accounting teams work under one roof. So when your will is being drafted, the people who understand your super, insurance, trusts and tax are in the same conversation. The result is an estate plan that’s legally sound and financially optimised for your family’s broader wealth strategy.

In practice, that means things like:

• Making sure your will, super nominations and insurance all point in the same direction.
• Checking the tax outcome for your beneficiaries, not just who receives what.
• Aligning your estate plan with any family trust, company or SMSF you control.
• Updating everything together when life changes, instead of one document at a time.

You can learn more about how we approach estate planning in Brisbane and Toowoomba, or meet the team who’d be looking after you.

Ready To Get Your Estate Plan Sorted?

You don’t need to have all the answers before you call us.

We’ll look at your will, powers of attorney, super nominations and structures together, spot the gaps, and help you close them. Legal, financial and tax, all in one conversation.

Book a chat with our team, call us on 1300 656 260, or get in touch online. We’d love to see you.

Estate Planning FAQs

What happens if you die without a will in Queensland?

Your estate is divided using the intestacy formula in the Succession Act 1981 (Qld). Your spouse and children usually inherit first, then other relatives in a set order. Stepchildren aren’t recognised, and a family member must apply to court to manage your estate. If no eligible relatives exist, your estate goes to the State.

Does my will cover my superannuation?

Not automatically. Super is held in trust by your fund and is paid according to your beneficiary nomination and the fund’s rules. Your will only controls your super if it’s paid to your estate. That’s why your will and your nominations need to be planned together.

How often should I review my estate plan?

Every three to five years is a good habit, and always after a major life event such as marriage, separation, a new child, or buying or selling a business. Check your super nominations too, as many binding nominations lapse after three years.

What’s the difference between an enduring power of attorney and an Advance Health Directive?

An enduring power of attorney appoints someone to make financial and/or personal decisions for you. An Advance Health Directive records your own instructions about future medical treatment. Many people have both, so their attorney has clear guidance on their wishes.

Do I need a testamentary trust?

Not everyone does. They’re most useful if you have young children, a sizeable estate, beneficiaries in business or shaky relationships, or a family member who needs extra protection. An adviser who understands both the legal and tax sides can help you decide.

Can I use a DIY will kit?

You can, and for a very simple situation it may be better than nothing. But DIY kits are easy to get wrong, often aren’t witnessed properly, and don’t deal with super, trusts or tax. If you have a blended family, a business, an SMSF or significant assets, professional advice is well worth it.

Does getting married or divorced affect my will in Queensland?

Yes. Marriage generally revokes an existing will unless it was made in contemplation of that marriage. Divorce, or the end of a de facto relationship, generally revokes gifts to your former partner. Separation alone doesn’t, so update your will as soon as you separate.

Any advice is general in nature only and has been prepared without considering your needs, objectives or financial situation. Before acting on it, you should consider its appropriateness for you, having regard to those factors. Before making any decision about whether to acquire a financial product, you should obtain the Product Disclosure Statement.