Wills, estates and planning ahead
Often, the first time we think about wills, estates and funerals is when we are dealing with the death of a loved one. Find out what to consider when writing a will, appointing a power of attorney or enduring guardian and how to arrange a funeral.
It’s important to plan ahead for decisions about your finances, lifestyle and health in case you lose capacity to make your own decisions.
Making a will lets you choose who will inherit your property after you die. You can appoint someone under a Power of Attorney or Enduring Guardianship to make decisions for you.
Wills
A will is a written document that sets out how the will-maker wants their property and possessions (their estate) divided after their death. Anyone over the age of 18 can make a will.
There are no formal requirements about who can draft a will. Before you start making your own will, or go to see a lawyer, you need to consider the following points:
- What do you own (your estate)?
- Who do you want to leave your estate to?
- Who will be the executor of your will?
- Do you want to leave directions about the payment of debts and funeral expenses?
- Should you set up a trust or leave gifts directly?
- Do you have any concerns about who will be a guardian for your children?
- What sort of burial or cremation arrangements do you want?
- What digital assets do you have?
Online books
The Find Legal Answers Tool Kit is a collection of plain English books about the law. You can read them online or at your local public library.
Use the Tool Kit online books below to find information about wills.
Rest assured: a legal guide to wills, estates, planning ahead and funerals in NSW
A plain English guide to the law of wills, estates, planning ahead and funerals.
The law handbook: your practical guide to the law in NSW
A practical guide to the law.
Useful links
For Aboriginal people
Legislation
In NSW, the legislation dealing with the formal requirements of making a will is contained in Chapter 2 of the Succession Act 2006.
Unless every one of the requirements in the Act is met when making a will, the court may not consider the will to be valid and the estate will be dealt with as if there were no will (as an intestate estate).
Planning ahead
A power of attorney is a legal document that appoints and authorises someone to act on your behalf in the areas of property and financial management.
An enduring power of attorney authorises someone to make decisions relating to lifestyle, health and personal affairs.
An advance care directive, or living will, is a way of recording your health and personal care instructions for family members, doctors and healthcare workers if you are unable to make those decisions for yourself.
Online books
The Find Legal Answers Tool Kit is a collection of plain English books about the law. You can read them online or at your local public library.
Use the Tool Kit online books below to find information about planning ahead.
Rest assured: a legal guide to wills, estates, planning ahead and funerals in NSW
A plain English guide to the law of wills, estates, planning ahead and funerals.
The law handbook: your practical guide to the law in NSW
A practical guide to the law.
Useful links
- Legal Aid NSW – Powers of attorney
- Legal Aid NSW – Enduring guardianship
- NSW Government – Planning for end of life
Legislation
The Powers of Attorney Act 2003 (NSW) allows the person appointing an attorney (the principal) to give the attorney specific directions on how the attorney is to act on behalf of the principal. The Act confirms that an attorney cannot use the principal’s assets for any purpose other than the benefit of the principal, unless the instrument expressly authorises it.
An enduring power of attorney is a legally binding appointment under the Guardianship Act 1987 (NSW).
Funerals
When someone dies, the deceased person’s executor or next of kin is responsible for arranging the funeral.
Online books
The Find Legal Answers Tool Kit is a collection of plain English books about the law. You can read them online or at your local public library.
Use the Tool Kit online books below to find information about funerals.
Rest assured: a legal guide to wills, estates, planning ahead and funerals in NSW
A plain English guide to the law of wills, estates, planning ahead and funerals.
The law handbook: your practical guide to the law in NSW
A practical guide to the law.
Useful links
- Legal Aid NSW – Funerals
- Legal Aid NSW – Coronial inquests
- NSW Health – Final arrangements of the deceased
Legislation
In NSW, funeral funds are governed by the Funeral Funds Act 1979 and all funeral funds must be registered. The NSW Fair Trading website lists all registered funds.
The Public Health Regulation 2022 makes provision for disease control measures and the facilities and procedures for the handling of bodies of deceased persons, exhumations, cremations and other matters relating to the disposal of bodies.
The Coroners Act 2009 enables coroners to investigate certain kinds of deaths to determine the cause of death.
Estates
Assets belonging to a person who has died are called their ‘estate’. This includes real estate, bank accounts, shareholdings, motor vehicles and other property such as furniture and jewellery. Sometimes life insurance policies and superannuation assets are included in an estate.
What happens after a death depends on whether the deceased person left a will or not and the value of the estate. If the person left a will, an executor deals with the will. An administrator will be required if there is no will, or if a will exists but no executor is appointed, or the appointed executor is not willing to take on the role. In this situation, the court will appoint an administrator.
When a person dies leaving a will, the executor is responsible for:
- finding the will
- arranging for disposal of the body
- getting the death certificate from the NSW Registry of Births, Deaths and Marriages
- ascertaining the deceased’s assets and liabilities
- assessing the value of the deceased’s assets
- obtaining Probate if required
- paying the deceased’s debts, income tax, duties and funeral expenses
- distributing the assets according to the terms of the will.
Online books
The Find Legal Answers Tool Kit is a collection of plain English books about the law. You can read them online or at your local public library.
Use the Tool Kit online books below to find information about being an executor.
Rest assured: a legal guide to wills, estates, planning ahead and funerals in NSW
A plain English guide to the law of wills, estates, planning ahead and funerals.
The law handbook: your practical guide to the law in NSW
A practical guide to the law.
Useful links
- Legal Aid NSW – Someone who died
- Australian Death Notification Service
- Service NSW – Deaths, wills and deceased estates
- Supreme Court of NSW – Probate
Getting help
Legal Aid NSW, community legal centres and other organisations may give free legal help to people with a legal problem in NSW.
Find more sources of help on the Getting help page.
Legal information at the State Library
The Library has a large collection of textbooks, legal commentaries, legal encyclopaedias, databases, journals, legislation and court reports - everything you need for advanced legal research.