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- office@hqf.com.au
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- PO Box 327, Coolangatta
WILLS AND ESTATES
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When a loved one dies with assets on both sides of the Queensland–New South Wales border, families face a question most lawyers cannot fully answer: which state’s law governs the estate dispute? Get it wrong, and you can end up in the wrong court, under the wrong legislation, with the wrong time limit and potentially no claim at all.
This is the most complex area of estate litigation we handle at HQF Lawyers and the one where our cross-border practice makes the biggest difference. This guide explains the rules in plain terms, using real examples from the Coolangatta–Tweed corridor.
Australian law does not apply a single state’s rules to an entire deceased estate. Instead, it splits assets into two categories – movable and immovable – and applies different rules to each.
Here is what that means in practice:
A single estate can therefore fall under two different succession laws at the same time. A Coolangatta resident who owned a Tweed Heads investment unit faced a Queensland-governed estate for their bank accounts and a NSW-governed estate for that unit — simultaneously.
This principle — known in law as ‘scission‘ — applies to every aspect of cross-border estate law, from probate to family provision claims.
Domicile is not simply where someone lived. It is where they intended to remain permanently. Courts look at objective evidence to decide this.
Relevant factors include:
For most long-term Coolangatta residents, domicile is clearly Queensland. But it can become genuinely contested for people who recently moved, split time between properties on both sides of the border, or held strong ties to another state.
⚠ Domicile determines which Succession Act governs your movable assets — and which state’s time limits apply to a family provision claim. Getting domicile wrong at the start of an estate dispute can end a claim before it begins.
Regardless of where the deceased lived, land and property always follow the law of the state where they are located. This is called the ‘lex situs‘ rule — Latin for ‘law of the place’.
For a Queensland-domiciled person who owned a Tweed Heads unit, succession to that unit follows NSW law. Their bank accounts follow Queensland law. One estate, two different succession regimes.
The proceeds of selling real property generally follow the same rules as the property itself — they do not automatically convert into movable assets governed by the deceased’s domicile.
The practical result: the executor of a cross-border estate must comply with two different state registries, two different court systems, and two different legislative frameworks. Often at the same time.
A Grant of Probate from the Queensland Supreme Court only works in Queensland. To deal with NSW real property, the executor must apply separately to have the Queensland grant recognised in NSW. This process is called resealing.
Resealing is a separate court application. It costs money, takes time, and adds complexity to the administration.
The same applies in reverse – a NSW grant must reseal in Queensland to deal with Queensland land.
An executor managing a cross-border estate needs a solicitor with experience in both states or two separate solicitors. HQF Lawyers has extensive experience acting in both Queensland and New South Wales and manages both applications.
A family provision claim is an application to the court for a larger share of the estate (or any share at all) when the will (or intestacy rules) have left someone inadequately provided for. The cross-border rules create some significant complications here.
The answer follows the same split:
A deceased domiciled in Queensland with a Tweed Heads unit means two separate proceedings are potentially necessary: one in Queensland over movable property and the Coolangatta home, and one in NSW over the Tweed Heads unit. These are not parallel claims over the same thing — they are separate claims under separate legislation over different assets.
NSW has a legal mechanism Queensland simply does not have: the notional estate. Under the Succession Act 2006 (NSW), a NSW court can reach back and treat assets the deceased transferred before death as if they still form part of the estate.
This applies to gifts, transfers into joint names, and superannuation paid to non-dependants – where those transactions happened without full value being given in exchange. The court can look back up to three years before death, and further if the transfer was intended to defeat a family provision claim.
Queensland courts cannot do this. A Queensland-domiciled deceased who gave away significant assets before death may leave an eligible claimant with very little to claim against. The same facts in a NSW-domiciled estate open the door to a notional estate claim that could recover those assets.
For cross-border estates, the location of the transferred asset matters. NSW courts may have jurisdiction over NSW real property transferred before death – even where the deceased was Queensland-domiciled. This is a genuinely complex area and one where specific legal advice early is essential.
⚠ The notional estate concept is one of the most misunderstood rules in cross-border estate law. Whether it applies depends on where the property sits, not just where the deceased lived.
The time limits for family provision claims differ between the two states — and in a cross-border estate, both can run simultaneously:
If a claimant needs to bring proceedings in both states, the Queensland deadline arrives first. Both clocks start ticking from the date of death, not from when probate is granted.
⚠ If you are unsure which state’s time limit applies, assume the shorter Queensland deadline and act on that basis. Missing the applicable time limit may end your claim permanently.
Beyond the legal rules, cross-border estates create real practical difficulties:
Here is how these rules play out in a typical border scenario.
The facts: The deceased lived in Coolangatta. They owned their family home there, an investment unit in Tweed Heads, bank accounts, and a superannuation account with no binding nomination. They died without a will.
Because they lived in Coolangatta, their domicile is Queensland. The rules apply as follows:
The administrator must apply for Letters of Administration in Queensland, then reseal that grant in NSW to deal with the Tweed Heads unit.
An adult child with a family provision claim brings it in Queensland for the movable assets and Coolangatta home. To claim against the Tweed Heads unit, they face a separate NSW analysis — including whether they meet the NSW eligibility test and can file within the NSW time limit.
Now change one fact: the deceased had lived in Tweed Heads for the last ten years, not Coolangatta. Domicile shifts to NSW. The movable assets now follow NSW law. The Coolangatta home still follows Queensland law. The time limits change. The eligible persons under the family provision legislation change. And the NSW notional estate provisions – unavailable before – now potentially apply to assets the deceased transferred before death.
One fact. Completely different legal analysis.
Disclaimer
The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice. Readers should seek legal advice about their specific circumstances.
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Please describe your enquiry below
Sometimes yes, and sometimes it is necessary. If the estate includes real property in both states, you may need to bring separate proceedings in each jurisdiction. These are not duplicate claims over the same thing. They are separate applications under different legislation targeting different assets. Getting the structure right at the start avoids wasted time and costs.
Courts look beyond daily habits to find the place the deceased genuinely treated as their permanent home. Voter registration, driver’s licence, tax address, primary medical relationships, and expressed intentions all matter. Where the evidence is genuinely mixed, domicile becomes a live legal issue and the answer can determine the entire outcome of an estate dispute. In those situations, assume the shorter Queensland time limit applies while the question resolves.
Not necessarily. A firm admitted in both jurisdictions can manage the entire administration from a single file – one solicitor handling both states’ requirements, one point of contact, one set of fees. HQF Lawyers practises in both Queensland and New South Wales and handles cross-border estates without referring them away. Contact our team to discuss your matter.
Not necessarily. A single will can cover property in both Queensland and NSW. Formal validity of the will generally follows generous choice of law rules – the law of where it was signed, or where the testator was domiciled. But who inherits each asset depends on the law governing that asset. Estate planning for people with cross-border assets deserves specific advice with this in mind.