Wills

About wills

A will is a legal document that explains:

• what you wants to happen to your assets after you die
• who you want to care for your children or pets
• how and where you want to be buried.

Why make a will

Making a will is a way you can look after the people you care about when you are gone.

A will lets you choose who will get your assets. These people are called beneficiaries.

Your estate is the name for all the assets that you own. This includes your home, land, car, money in bank accounts, animals, shares, insurance policies, jewellery, paintings, furniture and personal belongings.

A will lets you choose the person who will give your assets to the people named in your will. This person is known as your executor.

You can also use your will to make specific requests for your funeral. These requests are not legally binding. However, the executor should try to carry out your wishes, unless there is not enough money in your estate, or the directions are unreasonable or hard to carry out.

If you don't want to be cremated, you can give a written direction in your will. This direction is legally binding.

For more information, see Wills on the NSW State Library website.

Dying without a will (intestate)

If you die without a will (known as dying intestate), this means you haven’t left any instructions about what you want to happen to your assets. In this situation, the rules of intestacy apply. Under these rules, your assets will be given to your family in a particular order.

This order is based on family relationships. Your spouse, children, parents, siblings, grandparents, aunts and uncles and cousins are entitled to your estate. Each category of family member must be exhausted before moving onto the next category.

If you have a spouse and you have children from another relationship, your spouse will be entitled to the personal effects, a statutory legacy of $350,000 and one-half of the remainder of the estate.

If you don’t have any family to leave your assets to, they will be given to the government.

For more information, see Procedure on death if there is no will on the NSW State Library website. 

Appointing an executor

In your will, you need to choose an executor. An executor is the person who will distribute your assets and follow the instructions in your will.

Choosing the right executor is very important because they will be responsible for:

• arranging your funeral
• applying to the Supreme Court for a grant of Probate, and
• distributing the estate to the beneficiaries.

If you appoint more than one executor, you need to decide whether you want them to act:

• jointly – meaning they must both agree on all decisions, or
• jointly and severally – meaning they can make decisions together or individually.

You can also name a substitute executor in case the first executor dies, resigns or loses mental capacity. 

If you appoint your lawyer, they must follow strict rules to act as an executor. You should speak to your lawyer before appointing them. They can bill your estate to pay for their legal fees.

If you are not sure what to do in your circumstances, you should get legal advice.

Legal requirements of a will

A will must be:

• in writing
• signed by you, and
• witnessed by two other people who are not beneficiaries.

You must be over 18 and have capacity at the time of making your will. This means that you can understand what you are doing and how you want your estate to be distributed when you die.

The Supreme Court of NSW can make, revoke or change a will for a person who is under 18 or lacks capacity.

To learn more about capacity and decision making, visit the NSW government page Capacity Toolkit.

Naming guardians for your children

Your will can name who you want to care for your children after your death. This is called appointing a testamentary guardian (guardian).

You can name one or more people as a guardian.

Before you appoint a guardian in your will, it is important that you discuss your wishes with them and your family.

You should talk to them about:

• how you want your child to be cared for
• your children’s education
• your children’s religious and cultural upbringing.

It is important that they agree to becoming your children’s guardian. The appointment is not legally binding or enforceable. They can refuse to act as guardian if they don’t want to take on that responsibility.

A testamentary guardianship will end when your child turns 18 or the guardian is removed by a court.

If there is a dispute about who will care for your children after your death, the other parent, testamentary guardian, or another person, like a family member, can apply for court orders for your children. The court will consider your wishes, but ultimately it will make orders based on what is in the best interests of your children at that time.

If you are concerned about who will care for your children if you die, you should get legal advice.

For more information, see Parenting after separation.

Caring for a child with a disability

If you have a child with a physical or intellectual disability, it is important that you have a plan for how your child will be cared for if you die. You can use your will to make a plan.

If your child is under 18, you can name the person you want to care for your children after your death (guardian).

If your child is over 18, you can’t name a guardian in your will, even if they depend on you to care for them. In this situation, you may:

• have family who will take on this responsibility
• want to set up a trust fund, like a Special Disability Trust, to financially support your child
• need to apply to the Supreme Court for a statutory will for your child.

You will need to get legal advice to help you determine the best way to do this. ​You can speak to a private lawyer or NSW Trustee and Guardian about your options.​

You may also want to get financial advice. For more information, see Financial advice on the Moneysmart website.

Special disability trusts

A special disability trust can be included in your will to cover the long-term care and accommodation needs of your child. It allows you to financially support your child without the risk of them losing their Centrelink benefits.

You can only set up a special disability trust if your child has a severe disability.

There are very strict requirements that must be met for the trust to be eligible for the Centrelink exemptions.

It is important that you get legal advice. You can also talk to NSW Truste​e and Guardian​​.

For more information, see Special Disability Trusts on the Department of Social Services website.

Preparing a will

You can make your own will using a will kit, however if you don’t follow the instructions exactly, it may be invalid.
 
To make sure your will is valid and meets all legal requirements, you can get your will prepared by a private lawyer or NSW Trustee and Guardian.

A lawyer can help you to:

• make sure your will is correctly written, signed and witnessed
• make sure your wishes are clearly expressed in your will
• choose how you can take care of your family members or close friends
• understand whether leaving your property to someone may have tax consequences
• choose an executor and understand the executor's right to be paid for administering your estate
• choose the most effective and efficient way to arrange your affairs
• store the will in a safe place.

The NSW Trustee and Guardian will not charge a fee if you are eligible for a full Centrelink Age Pension. They will charge a commission for dealing with your estate after death.

To find a private solicitor, you can call the Law Society of NSW Solicitor Referral Service on 02 9926 0333.

Aboriginal and Torres Strait Islander people

If you are a Stolen Generations survivor, the Law Society of NSW can help you to make a will for free, or a reduced fee.

If you are an artist, the Arts Law Centre of Australia can helps you to make and update your will to protect your art, copyright, money and other assets when you pass away.

Updating a will

Your will does not expire. It operates until it is changed or revoked (cancelled).

Only you can update your will. Your power of attorney or enduring guardian can’t update your will on your behalf.

You can do this at any time if you still have capacity. You can do this by adding a codicil to your will or making a new one. You should speak to your lawyer or NSW Trustee and Guardian about updating your will.

You should update your will if you:

• get married
• get separated or divorced 
• have children
• have a change in circumstances.

Your will is automatically revoked if you get married, unless it was clearly made planning for your marriage.

If you get divorced, this will revoke:

• any gift to your spouse
• the appointment of your spouse as your executor, trustee or guardian, unless you have specifically stated otherwise.

If you are separated but not yet divorced, the will is still valid unless it is revoked.

If a beneficiary changes their name, you don’t need to update your will. When an application for probate is made, the beneficiary will have to show that they are the same person named in the will by giving a copy of their change of name certificate or marriage certificate.

For more information, see Chapter 4: Changing or revoking a will on the State Library NSW website.

Storing your will

You don’t have to register your will but it’s important to store your will in a safe place and let your executor know where it is stored.

You can store your will:

• at home
• with your lawyer
• with NSW Trustee and Guardian safe storage service
• at your bank.

If you have a power of attorney, enduring guardianship or advanced care directive, you should store it in the same place as these documents.

The Supreme Court of NSW holds wills made by children or people lacking capacity.

If you want to find a will, see Find out if we hold a Will made in NSW on the NSW Government website.

If your will was prepared by a lawyer and the law firm has since closed or the lawyer has died, you should contact the Law Society of NSW for information about whether the firm has been taken over or if they have information about where the files are being held.

Last updated: April 2026