Estate Planning FAQs — NSW
Answers to common questions about Wills and planning ahead
Making a Will and planning for the future can feel overwhelming. Our estate planning lawyers have answered the questions NSW clients ask us most often – about Wills, Powers of Attorney, Enduring Guardianship, testamentary trusts and superannuation. Every family is different, so if you would like advice about your own plan, call us or request a confidential call back.
- Experienced Wills & estates lawyers
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- Serving families across NSW
Reviewed by Jacinta Watkins, Partner – Estate Planning and Deceased Estates. Last updated November 2026.
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Estate Planning Frequently Asked Questions
What is estate planning and why do I need it?
Estate planning means putting legal documents in place that say who receives your assets when you die, and who makes decisions for you if you lose capacity.
Without a plan, NSW intestacy laws decide who inherits, and your family may need to apply to NCAT before they can make decisions for you. A good plan also helps reduce tax and the risk of family disputes.
Read more: Estate Planning
What documents are included in an estate plan?
A complete estate plan usually includes:
- Will – sets out who receives your assets and who manages your estate.
- Enduring Power of Attorney – appoints someone to manage your financial and legal affairs, including if you lose capacity.
- Enduring Guardianship – appoints someone to make medical and lifestyle decisions if you lose capacity.
- Advance Care Directive (if required) – records your wishes about future medical treatment.
Read more: Estate Planning
What happens if I die without a Will in NSW?
Your estate is distributed under a fixed formula in the Succession Act 2006 (NSW), known as the intestacy rules, rather than according to your wishes. Generally your spouse or de facto partner and children inherit first, then other relatives in a set order.
Someone will also need to apply for Letters of Administration, which adds time, cost and stress for your family.
Read more: Wills
Can I make a DIY Will?
You can, but DIY kits and online templates are risky. Common mistakes – such as incorrect witnessing or gifts that don’t cover the whole estate – can make a Will invalid or partly ineffective, leading to costly disputes or the estate passing under the intestacy rules.
A professionally drafted Will gives your executor a clear, enforceable path and protects your estate’s value.
Read more: Wills
When should I make or update my Will?
Make a Will as soon as you turn 18, then review it every three to five years or after a major life change, including when you:
- marry, divorce, or enter or end a de facto relationship
- have children or new dependants
- buy a home or acquire significant assets
- retire, or face ill health
- want to change your beneficiaries, executors or gifts.
Read more: Wills
Does marriage or divorce cancel my Will?
Marriage revokes any Will made before it, unless the Will was made in contemplation of that marriage.
Divorce does not cancel your whole Will, but it generally revokes any gift to your former spouse and any appointment of them as executor or trustee. Either way, you should update your Will.
Read more: Wills
Can I leave someone out of my Will?
Yes, but eligible people – such as a spouse, de facto partner, child or former spouse – can make a family provision claim if they believe they were not adequately provided for.
To reduce the risk of a successful claim, get specialist advice on how to structure your estate and clearly document your reasons.
Read more: Estate Planning
Who should I choose as my executor?
Choose someone you trust who is organised and able to deal with paperwork, banks and the Court. Many people choose a spouse or adult child, but you can also appoint a trusted friend, a professional, or a trustee company such as NSW Trustee & Guardian.
It is wise to name a back-up executor in case your first choice cannot act.
Read more: Executor Advice
How can I provide for my second spouse and children from my first marriage?
This can be done with careful drafting, using tools such as testamentary trusts, a right to live in the home for life with the property passing to your children afterwards, and other strategies tailored to your family.
Blended families face a higher risk of disputes, so specialist advice is important.
Read more: Complex Wills
What is a testamentary trust?
A testamentary trust is a trust created by your Will that comes into effect after your death. Instead of beneficiaries receiving their inheritance outright, a trustee manages it for them.
It can offer tax benefits, protect assets from a beneficiary’s creditors or relationship breakdown, and control when young or vulnerable beneficiaries receive their inheritance.
Read more: Testamentary Trusts
Do I need to be wealthy to have a testamentary trust?
No. Even modest estates can benefit, particularly where there are young children, blended families or vulnerable beneficiaries.
Read more: Testamentary Trusts
Does my Will cover my superannuation?
Not automatically. Super, and any life insurance held in your fund, is paid by the fund trustee, not under your Will.
Unless you have a valid binding death benefit nomination, the trustee decides who receives it, which may not match your wishes. Many binding nominations lapse after three years, so check yours regularly.
Read more: Superannuation & Estate Planning
What taxes apply when I die in Australia?
There is no inheritance tax in Australia. However, capital gains tax, income tax on income the estate earns, and tax on superannuation death benefits paid to non-dependants may apply. Good estate planning can reduce these.
Read more: Tax-Effective Estate Planning
What is the difference between a Power of Attorney and an Enduring Guardian?
A Power of Attorney covers financial and legal decisions, such as managing bank accounts, paying bills and dealing with property. An Enduring Guardian makes personal, medical and lifestyle decisions, such as where you live and the health care you receive, if you lose capacity. Most people appoint both.
Read more: Power of Attorney
Who can witness an Enduring Power of Attorney in NSW?
A prescribed witness who is not one of your attorneys – for example a solicitor or barrister, a registrar of the Local Court, or a licensed conveyancer or trustee company employee who has completed an approved course.
The witness must explain the document and certify that you appeared to understand it. Errors in the certificate can make the document unusable, which is why it is worth having a solicitor prepare and witness it.
Read more: Power of Attorney
What happens if I lose capacity without an Enduring Guardian?
A spouse, close family member or carer may be able to consent to some medical treatment as your “person responsible”. For other decisions, such as where you live, someone may need to apply to NCAT for a guardian to be appointed – possibly the NSW Public Guardian. Appointing an Enduring Guardian means you choose who decides.
Read more: Enduring Guardianship
What is the difference between an Enduring Guardianship and an Advance Care Directive?
An Enduring Guardianship appoints a person to make medical, dental and lifestyle decisions for you if you lose capacity. An Advance Care Directive records your own wishes about medical treatment. For a complete plan, the two documents should be prepared to work together.
Read more: Advance Care Directives
How do I get started with my Will at ALA Law?
Contact us to book an appointment with one of our estate planning lawyers, in person at our Penrith office or by phone or video. Before your appointment, we send you an information form so you can gather the details we need about your family, assets and wishes.
Read more: Wills
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