Estate planning and separation checklist: the documents to have, find and update in Australia

A workable Australian estate plan has five core documents: a valid will, an enduring power of attorney for money, an appointment for health and lifestyle decisions (enduring guardian, medical treatment decision maker or equivalent), a binding death benefit nomination for each super fund, and a current list of assets and how each is owned. If you separate, the same documents need updating, and you need a second set of papers for disclosure, plus a diarised deadline for any property claim. This checklist explains each item, why it matters and which guide covers the detail. The interactive version is the documents checklist tool.

General information only. Rules differ by state for wills and powers of attorney.

Part 1: the estate plan

1. A will that meets your state's formal rules

In writing, signed by you, witnessed by two adults present at the same time.
Witnesses should not be beneficiaries or their partners.
Appoint an executor and a substitute.
Include a residuary clause (who gets everything not specifically given).
Name a testamentary guardian for children under 18, if relevant.
Consider a testamentary trust if beneficiaries are young, vulnerable or at risk of a relationship breakdown or bankruptcy (get advice: it adds drafting cost but can have tax and protection benefits).

Details: valid wills and informal wills.

2. An enduring power of attorney

Made on the current form for your state and witnessed by the right kind of witness. Tell your attorney where it is and give them a certified copy. Details: enduring powers of attorney by state.

3. Health and lifestyle decisions

An enduring guardian (NSW, WA), medical treatment decision maker (Victoria), or an EPA covering personal and health matters (Queensland), plus an advance care directive or advance health directive if you want your wishes recorded.

4. Super death benefit nominations

For each fund: is there a binding nomination, is it lapsing or non-lapsing, when does it expire, and are the people nominated eligible (a spouse, child, financial dependant, interdependant, or your legal personal representative)? A self-managed fund needs a nomination that matches its trust deed. Details: lapsed binding nominations.

5. A list of assets and how each is owned

Asset	How it is owned	Passes by
Home owned as joint tenants	Joint tenancy	Survivorship, outside the will
Investment property as tenants in common	Your share	Your will
Bank account in your name	Sole	Your will
Super	Held in trust by the fund	Nomination and fund rules, outside the will unless paid to your estate
Life insurance outside super	Policy with a beneficiary or your estate	Policy terms
Family trust assets	Owned by the trustee	Trust deed; control passes by the deed, not by your will
Company shares	Your shareholding	Your will; control may depend on the constitution

This table is often where estate plans fail: people leave "everything equally to my children" while most of their wealth passes outside the will.

Part 2: review triggers

Review your plan after any of these:

marriage (generally revokes an earlier will)
separation (does not revoke the will or super nomination)
divorce (revokes gifts to the former spouse in most states, but not the super nomination)
a new de facto relationship
the birth of a child or grandchild, or the death of a beneficiary or executor
a large change in assets, such as selling a business or receiving an inheritance
moving to another state or overseas
every few years in any case, and before a super nomination lapses

Part 3: after a death (for executors)

Death certificate and the original will.
List of assets and debts at the date of death, with values (needed for the inventory and the probate fee band).
Online notice of intended application, then the grant application. See probate fees by state.
Contact every super fund to find out how it proposes to pay and what the tax components are. See super death benefit tax worked example.
Lodge outstanding tax returns, including a date of death return, and consider trust returns for the estate.
Diarise the CGT 2-year window if the deceased's main residence is in the estate. See CGT and the 2-year rule.
Diarise the family provision period for your state before distributing. See family provision time limits.
Keep accounts of everything received and paid. Beneficiaries can ask for them.

Part 4: if you separate

Separation date in writing, with evidence.
Safety first: if there is family violence, get help (1800RESPECT on 1800 737 732, or 000 in an emergency) before gathering documents.
Financial records: 12 months of statements for every account and loan, tax returns and notices of assessment for 3 years, payslips, business financials, and super statements.
Values: real estate appraisals, vehicle values, business valuations if needed, and the value of each super interest. See how superannuation splitting works.
Deadline: 12 months after the divorce order takes effect, or 2 years after a de facto relationship ends. See missed time limits.
Update the will and super nominations, and consider severing a joint tenancy on property so your share does not pass automatically to your former partner if you die before settlement (get advice first).
Child support: apply through Services Australia or agree in writing. See how the child support formula works.
Formalise any agreement with consent orders or a binding financial agreement. See divorce and consent orders steps and the property settlement worked example.

Worked example: a 30-minute audit (illustrative)

Lena, 52, recently divorced in Perth, checks her documents:

Will made in 2014 leaves everything to her former husband. The divorce revoked that gift in WA, so her estate would pass as if he had died before her, which may not be what she wants. Action: new will.
Super fund: binding nomination to her former husband, non-lapsing. Divorce does not cancel it. Action: new nomination immediately.
EPA appointing her former husband. Action: revoke and make a new one; check whether WA law already ended it.
Home now in her sole name after settlement. Action: update the asset list.

FAQ

How often should I review my estate plan?

At each life event in Part 2, and otherwise every 3 to 5 years.

Where should I keep the documents?

Keep originals somewhere safe and tell your executor and attorney where. Solicitors, public trustees and (in NSW and Victoria) the Supreme Court offer safe custody of wills.

Do I need a lawyer for all of these?

Not necessarily, but complex assets, blended families, trusts or businesses justify advice. Mistakes usually cost more than drafting.

Sources

Supreme Court of NSW — wills, probate notices and depositing a will
Australian Taxation Office — deceased estates, CGT and super death benefits
Services Australia — child support
Federal Circuit and Family Court of Australia — divorce and consent orders
Family Relationships Online — separation information and the Family Relationship Advice Line