Do I need a will in Western Australia?

Yes. If you die without a will in Western Australia, your estate is distributed according to the Administration Act 1903 (WA), which may not reflect your wishes. A will allows you to choose who receives your assets, appoint an executor and, if you have children, nominate a guardian. Without a will, the law decides — not you.

What is an Enduring Power of Attorney in Western Australia?

An Enduring Power of Attorney (EPA) is a legal document that authorises a person you choose (your attorney) to make financial and legal decisions on your behalf if you lose capacity. In Western Australia, EPAs are governed by the Guardianship and Administration Act 1990 (WA). Unlike an ordinary power of attorney, an EPA continues in force even if you become mentally incapacitated.

What is an Enduring Power of Guardianship in Western Australia?

An Enduring Power of Guardianship (EPG) is a legal document that appoints a person to make personal, lifestyle and treatment decisions on your behalf if you lose capacity. This includes decisions about where you live and the medical treatment you receive. It is different from an Enduring Power of Attorney, which covers financial matters only.

When is probate required in Western Australia?

Probate is required in Western Australia when the deceased held real property in their sole name, or when financial institutions require it before releasing funds. Each bank sets its own threshold — Westpac, for example, requires probate for combined account balances of $100,000 or more. A Grant of Probate is issued by the Supreme Court of Western Australia and confirms the executor's authority to administer the estate.

What is a testamentary trust?

A testamentary trust is a trust created by your will that comes into effect after your death. It holds assets for the benefit of your beneficiaries and can provide protection from divorce, bankruptcy and creditor claims. Testamentary trusts can also be tax-effective, particularly where income is distributed to minor beneficiaries.

What is an Advance Health Directive in Western Australia?

An Advance Health Directive (AHD) is a legal document that records your decisions about the medical treatment you would want — or not want — if you became unable to communicate. It is governed by the Guardianship and Administration Act 1990 (WA) and gives health professionals and family members clear direction about your wishes.

What happens if someone dies without a will in Western Australia?

If a person dies intestate (without a will) in Western Australia, their estate is distributed according to the Administration Act 1903 (WA). The estate passes to the surviving spouse, children, parents or other relatives in a fixed order set by law. If there are no eligible relatives, the estate passes to the Crown. A family member must apply to the Supreme Court for Letters of Administration to be authorised to administer the estate.

How much does a will cost at Crystal Lawyers?

Crystal Lawyers charges fixed fees for all estate planning services, including will preparation. Fees are transparent and agreed in advance — there are no hourly billing surprises. Contact Crystal Lawyers at val@crystallawyers.com.au or 0421 145 637 to discuss your matter and receive a fee estimate.

Val Antoff is the principal solicitor of Crystal Lawyers, a Perth-based law firm focusing exclusively on estate planning and the administration of deceased estates in Western Australia. Val holds a Bachelor of Laws from the University of New England and advises clients on wills, testamentary trusts, enduring powers of attorney, probate and deceased estate administration. Crystal Lawyers is based in Como, Perth.

Where is Crystal Lawyers located?

Crystal Lawyers is located at Suite 1, 3 Barker Avenue, Como, Western Australia 6152. The firm also sees clients at 136 Stirling Highway, Nedlands, Western Australia 6009. You can contact the firm by phone on 0421 145 637 or by email at val@crystallawyers.com.au.

Including Cryptocurrency in Your Will or Estate Plan

Val Antoff
Mar 9, 2025
6 min read

Updated: May 4

Introduction

Cryptocurrency is now a common part of many people's investment portfolios. If you own Bitcoin, Ethereum or any other digital asset, it is important to think about how it fits into your estate plan.

This article explains the main things to consider. It covers what cryptocurrency is, the challenges it creates for your estate, how to store it safely and what your executor will need to know. It is general information only and does not constitute legal advice. Please contact us if you would like advice specific to your situation.

What is cryptocurrency?

Cryptocurrency is a digital form of currency that exists only online. It uses encryption technology to secure transactions and is not issued or controlled by any government or bank. Bitcoin is the most well-known example, but there are thousands of others.

In Australia, cryptocurrency is treated as property, not currency. The ATO treats it as an asset subject to capital gains tax. This affects how it is dealt with in your Will, during probate and in the administration of your estate.

Why cryptocurrency is harder to deal with in an estate

When someone dies, the executor of their estate must identify, secure and distribute all of their assets. With traditional assets like bank accounts, shares and property, there are established processes for this. Cryptocurrency is different.

The biggest challenge is proving that the cryptocurrency exists and that the deceased owned it. There is no central register. If the executor does not know where to look or how to access the asset, it can be lost permanently.

Executors have a duty at common law and under the Administration Act 1903 (WA) to identify, secure and administer all estate assets with reasonable care and diligence. Once assets are held on trust for beneficiaries, the Trustees Act 1962 (WA) will also apply. Meeting those duties for cryptocurrency requires preparation during your lifetime.

To help your executor, you should:

keep a record of all your cryptocurrency holdings, wallet addresses and access credentials
store that information securely, but make sure the right person can find it after your death
refer to your cryptocurrency specifically in your Will and any other estate planning documents.

Your Will

Your Will should specifically mention your cryptocurrency. It should address:

whether you want it transferred to a beneficiary as cryptocurrency or sold and distributed as cash
who has authority to access it and deal with it
whether your executor may need technical assistance.

If your Will does not mention cryptocurrency, your executor may have difficulty dealing with it and there is a risk the asset will be lost entirely.

Enduring Power of Attorney

An Enduring Power of Attorney (EPA) allows someone to make financial decisions on your behalf if you lose capacity. Standard EPA forms do not specifically address digital assets.

If you hold cryptocurrency, consider including specific wording in your EPA that authorises your attorney to access digital wallets and exchange accounts, manage or sell volatile assets and deal with two-factor authentication and other security requirements.

One important limitation: most cryptocurrency exchanges will not formally recognise a power of attorney. Even with legal authority, your attorney may encounter technical barriers that require forward planning to overcome.

How cryptocurrency is stored

There are several ways to store cryptocurrency, and each creates different practical issues for estate administration.

Hardware wallets are physical devices that store your cryptocurrency offline. If you use one, your executor will need to know where the device is, the PIN to access it and the recovery seed phrase.

Paper wallets store access credentials on a physical document. Your executor will need to know where this is stored and how to use it.

Online wallets and exchange accounts are accessed through a website or app. Your executor will need the account login details, information about two-factor authentication and how to contact the platform's customer service.

Whatever storage method you use, the key point is the same: document the details, store them securely and make sure your executor knows how to find them.

A note of caution: some arrangements marketed as estate planning tools, such as smart contracts that automatically transfer assets on death, may actually bypass probate. This can cause unintended legal consequences. The law in this area is still developing in Australia.

No court in Western Australia has definitively ruled on how automated cryptocurrency transfers on death interact with the requirements of the Wills Act 1970 (WA) or the Administration Act 1903 (WA). Seek legal advice before setting up any automated transfer arrangement.

Probate and the administration process

In Western Australia, a grant of probate or letters of administration is usually required before an executor can deal with estate assets. Under the Administration Act 1903 (WA), the executor must prepare an inventory of all assets and liabilities, including cryptocurrency, as part of the probate application to the Supreme Court of Western Australia.

This requires a valuation of cryptocurrency at the date of death. Because cryptocurrency values can change significantly hour to hour, the executor should document how the valuation was carried out. Expert assistance may be needed for larger holdings.

After probate is granted, the executor will need to work through each exchange or platform to transfer or sell the cryptocurrency. Each platform may have different requirements, and all must comply with anti-money laundering and identity verification rules.

Tax

When the executor sells cryptocurrency as part of the estate administration, a capital gains tax event occurs. If cryptocurrency is transferred in kind to a beneficiary, the CGT liability is generally deferred until that beneficiary sells or otherwise disposes of it. The beneficiary's cost base is usually the deceased's original acquisition cost, although exceptions apply in some circumstances.

The rules around cost base and the CGT discount are complex. For example, whether the 50% CGT discount applies will depend on how long the deceased held the asset and when the estate or beneficiary disposes of it. A tax adviser with experience in digital assets should be consulted for advice specific to the estate.

For larger estates, it may also be worth considering a testamentary trust structure in the Will, which can provide tax advantages, particularly where minor beneficiaries are involved.

If you have a self-managed super fund

If your self-managed superannuation fund (SMSF) holds cryptocurrency, additional rules apply. Your SMSF trust deed should address digital assets, and your investment strategy must be consistent with the sole purpose test under the Superannuation Industry (Supervision) Act 1993 (Cth).

Superannuation does not automatically form part of your estate. For SMSFs, a binding death benefit nomination can direct where your superannuation is paid, but only if your trust deed allows for it and the nomination complies with the deed's requirements. Your deed should be reviewed to confirm this.

Family provision claims

Western Australia's Family Provision Act 1972 (WA) allows certain people to challenge an estate if they feel they have not received adequate provision. Cryptocurrency can complicate these claims because it is harder to trace and value than other assets.

To reduce this risk, your Will should clearly identify your cryptocurrency holdings and explain how you want them distributed. If you are leaving cryptocurrency to some beneficiaries but not others, document your reasons.

Business owners

If your business holds cryptocurrency, your partnership agreement or shareholder agreement should address ownership, succession and access in the event of death or incapacity. Cryptocurrency used in or acquired for a business partnership may be partnership property under the Partnership Act 1895 (WA), depending on how it was acquired and how it is held. Without clear documentation, disputes can arise about whether digital assets belong to the business or to a partner personally.

International issues

Many Australian cryptocurrency holders use overseas exchanges or platforms. This can raise questions about which country's laws apply and whether an Australian grant of probate will be recognised by a foreign platform.

If you hold significant cryptocurrency assets through overseas platforms, it may be worth discussing with your lawyer whether a separate Will dealing specifically with those assets would be appropriate.

What to do now — a practical checklist

List all your cryptocurrency holdings, including the type, approximate value and where each is stored.
Create a secure record that your executor can access after your death. This should include wallet addresses, access credentials and recovery information. Store this separately from your Will but tell your executor where to find it.
Review your Will to make sure it specifically addresses your cryptocurrency. If it does not, contact us to update it.
Review your EPA to make sure it gives your attorney authority to deal with digital assets.
If you have an SMSF that holds cryptocurrency, review your trust deed and make sure your binding death benefit nomination is current and compliant with the deed.
For larger or more complex holdings, speak with an accountant experienced in digital assets about the tax implications.

This is general information only and does not constitute legal advice. If you would like advice specific to your circumstances, please contact us on 0421 145 637 or email val@crystallawyers.com.au.

Including Cryptocurrency in Your Will or Estate Plan

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