Most people don’t like thinking about what happens after they’re gone, but planning ahead is one of the most important things you can do for your family. A clear, well-drafted Will and a proper estate plan make sure your wishes are carried out and your loved ones are protected – not left sorting through uncertainty, paperwork and arguments.
This guide explains how Wills and Estates law works in New South Wales. It covers the key stages of planning, administering and, where necessary, resolving disputes about estates. The aim is simple: to help you understand what really matters and where good legal advice can make a difference.
What estate planning actually involves
Estate planning isn’t just about writing a Will. It’s about making sure the right people can make decisions for you, that your assets go where you want them to, and that the process is as smooth as possible for those left behind.
A sound estate plan will usually include:
a Will, which sets out who receives what,
an Enduring Power of Attorney, giving someone authority to handle your finances if you lose capacity,
an Enduring Guardianship, so trusted people can make health and lifestyle decisions for you,
updated superannuation nominations, and sometimes
a trust structure to protect assets or manage tax obligations.
It’s surprising how many people leave these things unfinished. When there’s no valid Will, the estate is divided according to the Succession Act 2006 (NSW), not personal wishes. That can leave out stepchildren, partners, or others you intended to provide for. It can also create unnecessary stress and conflict for the people left behind.
The key laws that apply
Several pieces of legislation shape how estates are planned and managed in NSW:
The Succession Act 2006 (NSW) – covers Wills, intestacy, family provision claims and executor duties.
Probate and Administration Act 1898 (NSW) – governs how probate and letters of administration are granted and the procedural steps for administering deceased estates.
The Powers of Attorney Act 2003 (NSW) and the Guardianship Act 1987 (NSW) – regulate substitute decision-making.
Understanding how these laws overlap isn’t always straightforward. In practice, the best outcomes come from planning early – before capacity, family structures or asset positions become complicated.
Writing a valid Will
A Will only takes effect after death, but whether it’s valid depends on how it’s made. In NSW, the law requires that a Will be written, signed by the person making it, and witnessed by two independent adults. The Will-maker also needs to have mental capacity and must not be under any pressure or influence.
Those rules sound simple, but small mistakes cause big problems. We’ve seen cases where home-made or online Wills led to expensive court applications to interpret what the person meant. When an estate involves property, trusts, or blended families, the risk is even greater. Having a lawyer prepare or at least review your Will is a modest investment compared with the cost of fixing an invalid one.
If someone dies without a valid Will, they’re said to die intestate, and their estate is distributed under a fixed legal formula. The outcome can be very different from what they might have wanted.
The executor’s role
When a person passes away, their executor becomes the point of contact for the estate. The executor’s job is to identify assets and debts, apply for probate, and then distribute what’s left according to the Will. It’s a responsible position – executors must act fairly and keep accurate records.
An executor can also be personally liable for mistakes, so it’s not a role to take lightly. Choosing someone organised, trustworthy and impartial makes the process far easier for everyone involved.
(For a deeper look, see: “Executor duties in NSW – what happens after someone dies.”)
Probate and letters of administration
Before an estate can be administered, the executor usually needs to apply for probate through the Supreme Court of NSW. This is the court’s formal recognition that the Will is valid and that the executor has authority to act.
If there’s no Will, or no executor is available, the closest next of kin can apply for letters of administration instead. The process is similar but follows the intestacy rules to determine who inherits.
In both cases, the application involves filing the death certificate, a list of assets and liabilities, and sworn statements confirming the Will (if there is one). Once the grant is issued, the executor or administrator can collect funds, sell property, and distribute the estate.
(See also: “Applying for probate in NSW – step-by-step guide” and “Letters of administration in NSW – what happens when there’s no Will.”)
Administering and distributing the estate
Once the grant is obtained, the real work begins. Executors or administrators must:
Locate and value all assets, including real estate, shares, bank accounts and superannuation;
Pay outstanding debts, taxes and expenses; and
Transfer or distribute what remains to beneficiaries.
Real property often needs to be sold or transferred, which involves conveyancing and, in some cases, capital gains tax considerations. Executors should also keep beneficiaries informed throughout – transparency avoids many disputes.
(Further reading: “Selling property from a deceased estate in NSW.”)
When disputes arise
Disagreements over estates are unfortunately common. The most frequent are family provision claims, where someone argues they’ve been left without adequate provision. Others involve questions about whether a Will is valid – for example, if the Will-maker lacked capacity or was unduly influenced.
There can also be disputes between executors and beneficiaries, particularly where there are delays or conflicts of interest. Mediation is often the best first step, but if that fails, the Supreme Court can resolve the issue under the Succession Act 2006 (NSW).
(Further reading: “Family provision claims – how to challenge a Will in NSW.”)
Planning for complex situations
Every family and estate is different. Some require additional steps to manage risk or prevent future conflict. Examples include:
Blended families, where there are children from different relationships.
Business owners, who need their estate plan to align with business succession.
Overseas assets or citizenship, which can complicate how Wills are recognised.
Superannuation and death benefits, where incorrect nominations can trigger disputes.
Digital assets and cryptocurrency, which can be lost if access isn’t documented.
These aren’t theoretical issues – they’re the situations where people often need a specialist’s help. The more complex the assets or relationships, the more value there is in getting proper advice early.
Getting the right help
Estate planning and administration are areas where precision really matters. A Will that’s drafted properly today can save your family months of delay and thousands in legal costs later. Likewise, an executor who understands their obligations can avoid disputes and protect the estate from unnecessary risk.
At Thornton + King, our Wills and Estates lawyers work with clients across Sydney to plan, administer and, where necessary, resolve estate issues. We’ve seen how a clear plan – and a bit of foresight – can prevent conflict and provide peace of mind for everyone involved.
If you’re planning ahead or managing an estate, it’s worth taking the time to get it right. To speak to a specialist Wills and Estates lawyer, give us a call or submit an enquiry now.
