Estate and separation documents compared
Wills, informal wills, enduring powers of attorney, guardianship appointments, binding super nominations, consent orders and binding financial agreements side by side.
This table compares the types of legal document and process Australians use to plan an estate or settle money matters after separation. It does not compare law firms or providers. State rules differ for wills and powers of attorney; family-law documents are federal. Use it with the overview of costs and documents and the documents checklist.
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| Document or process | What it does | Formal requirements | Watch out for |
|---|---|---|---|
| Formal will | Appoints executors and guardians for children and says who receives your estate | In writing, signed by the will-maker in front of two adult witnesses present at the same time (state Wills or Succession Act) | Marriage usually revokes it; divorce revokes gifts to a former spouse but separation does not; super and joint assets pass outside it |
| Informal will (dispensing power) | A document, note or recording the court accepts as a will although not properly signed or witnessed | Court must be satisfied the person intended it to be their will (e.g. Succession Act 2006 (NSW) s 8) | Needs a court application, evidence and usually legal costs paid from the estate; outcome uncertain |
| Enduring power of attorney | Lets a chosen person manage your financial affairs, continuing if you lose capacity | State form and witnessing rules; some states require attorney acceptance and a qualified witness | Different form in each state; attorneys must keep money separate and records; misuse can be reviewed by the tribunal |
| Enduring guardian or medical decision-maker | Lets a person make health and lifestyle decisions if you lose capacity | State legislation (e.g. Guardianship Act 1987 (NSW); Medical Treatment Planning and Decisions Act 2016 (Vic)) | Names and forms differ by state; health decisions may also be covered by an advance care directive |
| Binding death benefit nomination | Directs your super fund to pay your death benefit to dependants or your estate | Fund's form, two adult witnesses who are not beneficiaries; often lapses after 3 years unless non-lapsing | Only SIS dependants or your legal personal representative can be nominated; a lapsed or invalid nomination leaves the trustee to decide |
| Consent orders (Family Law Act) | Court orders, made by agreement, for property settlement, super splitting and parenting | Application for Consent Orders filed with the Federal Circuit and Family Court of Australia; the court checks the division is just and equitable | Filing fee applies; the court can refuse orders it considers not just and equitable; deadlines apply after divorce or de facto separation |
| Binding financial agreement | A private contract about property and maintenance, before, during or after a relationship | Each party must receive independent legal advice and a signed statement of advice (Family Law Act Part VIIIA or VIIIAB) | Can be set aside for non-disclosure, fraud or hardship; legal costs for both parties; not reviewed by a court when made |
| Grant of probate or letters of administration | Court confirms the will and the executor's authority, or appoints an administrator when there is no valid will | Online notice, then application to the state Supreme Court with the original will and an inventory of assets | Court fee depends on estate value (NSW and Vic); banks and land registries usually insist on a grant for larger estates |
Requirements are summarised; read your state's legislation on the official legislation website or ask a lawyer. Court fees change every 1 July: check the Supreme Court of NSW, the Supreme Court of Victoria and the Federal Circuit and Family Court of Australia. Tax rules for super death benefits and inherited assets are explained by the ATO. This is general information, not legal advice.