The will most property owners never update.
Your solicitor drafted it when you bought your first home. None of the people paid around your purchase was paid to check whether it still does what you'd want now.
Property is the largest, slowest, most legally tangled asset most people will ever own. It outlives jobs, relationships, and tax settings. The will that was written before the second property — or the second relationship, or the kids, or the trust — usually isn't the one you'd write now. And nobody around the next purchase is paid to bring it up.
This isn't legal advice. It's a list of the structural questions an estate lawyer will ask you eventually — laid out so you can walk in already knowing where the gaps are, instead of finding out from a sentence your family can't un-hear.
“A will written before the property exists is a plan for a different life — not for the one the property is now part of.”
The pieces most owners haven't reviewed since the purchase
Property changes the centre of gravity of an estate. Cash, super, a car — those move through a will neatly. A house with a mortgage, a tenant, an offset account, a joint owner, and possibly a trust around it does not. Almost every owner has at least one piece below that has never been revisited since the title transferred.
The will itself
If it was written before this property existed, before a relationship change, or before children, it almost certainly doesn't reflect what you'd want now. Most owners can't remember the last time they read it. Reading it is the first step.
Joint tenants vs tenants-in-common
How the title is held is a decision that often defaults at purchase and never gets revisited. Joint tenants means the property passes automatically to the surviving owner — not through your will at all. Tenants-in-common means each owner's share passes through their own will. For unmarried partners, second relationships, or business co-owners, the wrong default can quietly disinherit the people you'd most want to protect.
Executor
The person you named years ago might not be the person you'd choose now — or might no longer be in a position to take it on. Executing an estate that includes property is months of work, often involving real-estate decisions, tenant relationships, and tax filings the executor has never done before.
Enduring Power of Attorney
What happens if you lose capacity before you die. Without an EPA, even a spouse can need to apply to a court to make decisions about your property. With the wrong EPA — or an old one naming someone no longer suitable — the same problem appears in slow motion.
Super or KiwiSaver nominations
Super (AU) and KiwiSaver (NZ) do not pass through your will by default. They pass via the nomination held by the fund — and many owners' nominations were last updated in their 20s. For people with significant balances, this is often the largest single asset that the will doesn't control.
Australia — the pieces that matter most here
Three things to put on the list when you next speak to an Australian estate lawyer.
Testamentary trust
A trust created by your will rather than during your lifetime. For property and significant assets, it can dramatically change how income is taxed for beneficiaries — children can be taxed at adult rates, for instance — and how protected the inheritance is in the event of a beneficiary's relationship breakdown or bankruptcy. Worth asking whether one belongs in your will, given how much of your estate sits in property.
Binding Death Benefit Nomination (BDBN)
Tells your super fund where the benefit goes when you die. Without one, the trustee decides — and it doesn't always go where you would have. Nominations expire (typically every three years) and lapse silently. Worth checking the date on yours.
State-specific probate
Probate and stamp-duty rules differ by state. A property in NSW handled through a Victorian solicitor introduces friction your executor doesn't need. Consider whether your lawyer covers the state the property sits in.
New Zealand — the pieces that matter most here
Three things to put on the list when you next speak to a New Zealand estate lawyer.
Enduring Power of Attorney — both kinds
New Zealand has two: one for property, one for personal care and welfare. Both have to be in place. The property EPA covers decisions about your assets if you lose capacity; the personal-care EPA covers health and living decisions. Most people get one and forget the other — and they cover very different things.
Family Protection Act 1955
Close family members (spouses, partners, children, in some cases grandchildren) can bring a claim against your estate if they believe they haven't been adequately provided for. This shapes how a will can — and can't — distribute property. Worth understanding the constraint before drafting around it.
KiwiSaver nominations and trust treatment
KiwiSaver doesn't pass through your will by default. Check the nomination held by your provider. Separately, if the property sits in a family trust, distributions of trust income are taxed at NZ's top trust rate (currently 39%) — which has shifted in recent years and may shift again. Worth knowing whether the trust is still doing what you set it up to do.
“Estate planning isn't about death. It's about who keeps making the decisions the day you can't.”
The questions worth taking to a lawyer
You don't need to know the answers. You need to know the questions. Walking into the meeting with this list saves an hour of explaining, and a few hundred dollars of billable time spent surfacing what you already could have surfaced.
- When was my current will written, and what has changed in my life and assets since then?
- How is the property held — joint tenants or tenants-in-common — and does that match what I'd want to happen if I died first?
- Who is my executor, and have I asked them if they're still willing and able?
- Do I have an Enduring Power of Attorney in place — and (NZ) for both property and personal care?
- Where does my super or KiwiSaver go if I die, and when was the nomination last updated?
- Does a testamentary trust (AU) belong in my will given how much sits in property — and have I considered how a family trust (NZ/AU) interacts with my estate?
- If a Family Protection Act claim (NZ) or family-provision claim (AU) were brought against my estate, would it succeed?
- What's the one piece you'd change first if this were your estate?
The estate work is downstream of one question almost no one asks first: does the property itself still make sense? A will optimises what happens to the asset; the bigger question is whether the asset is doing what it was supposed to do in the first place. Most owners discover the answer is "not really" — and the estate-plan conversation lands very differently after that.
Before the lawyer
See your whole property position first.
Before You Hold is the diagnostic course for 1–3-property owners in AU and NZ. Eight modules, your real numbers, the questions worth asking the people you pay — including the lawyer. The estate questions land harder when you know what the property is actually doing.