Inheritance laws in Australia are not uniform across the country. Each State and Territory has its own legislation governing wills, estates, and the distribution of assets when someone passes away. For families with property holdings across different jurisdictions, or for individuals inheriting property interstate, these differences can have a significant impact.
Understanding the variations in inheritance laws is essential to avoid confusion, delays, and disputes when dealing with property and estate matters.
Wills and Intestacy
The first key difference between states relates to intestacy rules—the way assets are distributed if someone dies without a valid will. While the general principle is that spouses, de facto partners and children are given priority, the order of distribution and the shares allocated differ depending on the jurisdiction.
For example:
- In Queensland, a surviving spouse may receive a set statutory legacy, with the remainder divided between the spouse and children.
- In New South Wales, the spouse may be entitled to the entire estate if there are no children from outside the relationship, but the distribution changes if there are children from other relationships.
- Other states, such as Victoria and Western Australia, have their own formulas for distribution under intestacy.
This means the outcome for beneficiaries can vary significantly depending on where the deceased was domiciled.
Contesting a Will
Each State has legislation allowing eligible persons to contest a will if they believe they have not been adequately provided for. However, eligibility and time limits differ.
- In Queensland, claims are brought under the Succession Act 1981 and typically must be filed within nine months of death.
- In New South Wales, claims are made under the Succession Act 2006, with different categories of eligible applicants, including de facto partners and certain dependants.
- In Victoria, only “eligible persons” under the Administration and Probate Act 1958 can apply, and courts consider factors such as the claimant’s financial needs and the size of the estate.
Because of these differences, someone who would have standing to challenge a will in one State may not have the same rights in another.
Taxes and Duties
Inheritance in Australia is not subject to federal inheritance tax. However, property transfers can trigger State-based taxes and duties. For example, stamp duty may be payable in certain circumstances when property passes through an estate or is transferred to beneficiaries.
The rules around exemptions and concessions vary by state. For instance, family home exemptions may apply in some jurisdictions but not others.
Executors and Probate
Probate—the process of validating a will—is also State-specific. Each jurisdiction has its own Supreme Court procedures, forms, and requirements. If the deceased owned property in more than one State, it may be necessary to obtain a reseal of probate in each relevant jurisdiction before dealing with the property.
Why Legal Advice Is Essential
Because inheritance laws vary across states, estate administration and property transfers can become complex when assets or beneficiaries are located in different jurisdictions. Property lawyers play a key role in:
- Interpreting the relevant State laws
- Assisting executors to obtain probate or letters of administration
- Advising beneficiaries on their rights and entitlements
- Ensuring compliance with State-specific duties and processes
Final Thoughts
While the principles of succession are broadly similar across Australia, the details differ significantly between states. These differences can impact how property is inherited, who is entitled to make a claim, and what legal processes must be followed.
If you are inheriting or managing property located in any State in Australia, our property law team can provide clear, tailored advice to help you navigate State-specific inheritance laws. Contact us today for guidance on property inheritance and estate administration matters.
| State/Territory | Intestacy Distribution | Contesting a Will | Probate & Property Transfers |
| Queensland (QLD) | Spouse receives statutory legacy, balance shared with children. | Succession Act 1981 – Eligible persons (spouse, children, dependants) must apply within 9 months. | Probate granted by QLD Supreme Court; reseal required for interstate assets. |
| New South Wales (NSW) | Spouse inherits whole estate unless children from other relationships exist. | Succession Act 2006 – Broad eligibility (spouses, de facto partners, children, dependants). | Probate via NSW Supreme Court; reseal required for assets outside NSW. |
| Victoria (VIC) | Surviving spouse/partner receives estate; children entitled only if from different relationships. | Administration and Probate Act 1958 – Only “eligible persons” can apply. | Probate handled by VIC Supreme Court; reseal required interstate. |
| Western Australia (WA) | Fixed share to spouse, balance divided among children and other relatives. | Family Provision Act 1972 – Eligible persons include spouse, children, dependants. | Probate required through WA Supreme Court; reseals available. |
| South Australia (SA) | Estate divided between spouse and children according to statutory formula. | Inheritance (Family Provision) Act 1972 – Similar provisions for eligible applicants. | Probate via SA Supreme Court; reseal for interstate property. |
| Tasmania (TAS) | Spouse and children share estate under statutory rules. | Testator’s Family Maintenance Act 1912 – Spouses, children, and certain dependants eligible. | Probate required through TAS Supreme Court; reseal interstate. |
| Northern Territory (NT) | Spouse receives statutory share, balance divided among children and other relatives. | Family Provision Act 1970 – Eligible persons may apply within strict timeframes. | Probate via NT Supreme Court; reseal available for interstate assets. |
| Australian Capital Territory (ACT) | Spouse inherits whole estate unless there are children from another relationship. | Family Provision Act 1969 – Applications can be made by spouses, partners, children, and dependants. | Probate granted by ACT Supreme Court; reseals for interstate assets. |