People are often surprised to learn that their Will cannot deal with all of the assets that they manage or control when they die.
Generally, your Will can only deal with assets that you hold in your own name, such as your home, shares and cash in bank accounts.
It cannot deal with any assets held jointly, such as property held as joint tenants or money in joint bank accounts, because these assets will pass to the other owners automatically when you die. Usually, assets that you control through a company or a trust also cannot be dealt with under your Will. However, in some circumstances and with additional planning, you can pass control of these structures through your Will.
Superannuation is not a personal asset, but it can form part of your estate if it is paid to your estate by your trustee after you die. It is the trustee of your superannuation fund who decides who will receive your superannuation. It will not automatically go to the person you wish and a direction in your Will as to who it should be paid to may not be effective. However, in some circumstances, you can make sure that it is paid to the people you choose by using other estate planning tools.
It is also important to be aware that any assets that your Will can deal with are vulnerable to estate challenges. On the other hand, assets outside of your estate will not be. For more information about this, see our article What are the avenues to challenge a Will?
Anyone with assets in New South Wales should also be aware that there are special 'notional estate' provisions that can lead to assets that do not usually form part of a deceased person's estate being available to make an award in an estate challenge. For more information about the 'notional estate' principles, see our article Is your property in New South Wales protected by your current estate planning?
Simply making a Will may not be enough. It is important to have a full estate plan in place, which deals with all of the assets you control. This is the only way to make sure that you properly pass control of any assets your Will cannot deal with and protect assets as far as possible from the risk of estate challenges when you die.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
