A will is one of the cheapest, most useful legal documents a person ever signs — and one of the most commonly put off. The Victorian Wills Act 1997 sets the rules, and the rules are not difficult, but the consequences of getting them wrong are. Without a valid will, your estate is distributed under intestacy rules that may bear no resemblance to what you would have wanted, and probate becomes more complex and expensive for the people you leave behind.
What a will actually does
A will appoints an executor (the person who administers your estate), names guardians for any minor children, and directs how your assets are to be distributed. It can include specific gifts, residuary gifts, charitable bequests, and trusts for children or beneficiaries with particular needs. It only operates on your assets that form part of your estate — not on jointly-owned property (which passes by survivorship) or superannuation (which passes by trustee discretion, usually following a Binding Death Benefit Nomination).
The Family Provision claim regime in Victoria
Victoria has a Family Provision claim regime under the Administration and Probate Act 1958, which allows a spouse, domestic partner, child (including adult child in some circumstances), step-child, dependant or registered carer to apply to the Court if they consider they have not been adequately provided for. A well-drafted will anticipates these risks and is structured to make any claim difficult — including, where appropriate, with an accompanying explanatory statement.
Powers of attorney and advance care directives
An effective estate plan includes more than just a will. A General Power of Attorney covers financial decisions during your lifetime; an Enduring Power of Attorney continues if you lose capacity. An Appointment of Medical Treatment Decision Maker covers medical decisions where you cannot make them yourself. An Advance Care Directive records the kind of medical care you do — and do not — want. We can prepare these alongside your will so the whole picture is consistent.
Probate and estate administration
When someone dies, the executor of the will applies for a grant of probate from the Supreme Court of Victoria. The grant gives the executor authority to collect the assets, pay debts and tax, and distribute the estate. I assist executors with the probate application, the asset gathering process, dealing with banks and superannuation funds, defending or settling any Family Provision claim, and the final distribution. Most estates can be administered without contention; some require active management of contested issues.
How I handle a wills & estates matter
- 1Initial consultation about your assets, family structure and intentions
- 2Drafting a will, powers of attorney and medical decision maker appointment as a package
- 3Coordination with your accountant or financial planner where appropriate
- 4Safe storage of the original will
- 5Ongoing review every few years or after major life events
Frequently asked questions
Can I write my own will?
You can, but informal or 'DIY' wills are the single biggest source of avoidable probate disputes in Victoria. They are often invalid for failing to satisfy Wills Act formalities, or use language that creates ambiguity. The cost of a properly drafted will is small compared to the cost of resolving disputes about an unclear one.
Does my super pass under my will?
Generally no. Superannuation is paid by the trustee of your super fund, usually in accordance with a Binding Death Benefit Nomination. If you do not have a valid nomination, the trustee has discretion. We will review your super arrangements as part of your estate plan.
What is the difference between probate and letters of administration?
Probate is granted where there is a valid will and an executor. Letters of administration are granted where there is no will (intestacy) or no executor able to act. Both give the personal representative authority to administer the estate.
Can I leave someone out of my will?
Yes, but if the person is in a class eligible to make a Family Provision claim — spouse, partner, child, dependant — leaving them out (or leaving them very little) can lead to a claim being made and may result in a court order varying your wishes. Structuring the will to manage this risk is part of the planning.
Reviewed by Elisa Rothschild BA/LLB — Principal Lawyer, Fogarty Oliver Rothschild. Admitted to legal practice in Victoria. Last reviewed 2026-05-22.
This page is general legal information about wills & estates in Victoria, Australia. It is not legal advice for your specific situation. For advice on your matter, book a free initial consultation.